                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 N.S., as a minor, by and through her
 parents and next friends, S.S. and C.S.,

         Plaintiffs,
           v.                                               Civil Action No. 16-306 (JDB-GMH)
 DISTRICT OF COLUMBIA,

         Defendant.


                                  MEMORANDUM OPINION

       Plaintiff N.S. and her parents brought this suit against the District of Columbia Public

Schools (DCPS) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400

et seq. Specifically, plaintiffs sought reversal of an administrative hearing officer’s February 4,

2016 determination that DCPS did not deny her the “free and appropriate education” (FAPE)

required by the IDEA. Id. § 1400(d)(1)(A). This case was referred to Magistrate Judge G. Michael

Harvey, who issued a thorough Report and Recommendation (R&R) recommending that the Court

affirm the hearing officer’s decision, deny plaintiff’s motion for summary judgement, and grant

defendant’s motion for summary judgment. See R&R, Jan. 31, 2017 [ECF No. 26]. Judge Harvey

also determined that his R&R was consistent with the Supreme Court’s recent decision in Endrew

F. ex rel. Joseph F. v. Douglas County School District, 137 S. Ct. 988 (2017). See Order, May 3,

2017 [ECF No. 33]. Plaintiffs have since moved to voluntarily dismiss this case with prejudice

under Federal Rule of Civil Procedure 41(a)(2). See Mot. for Dismissal [ECF No. 37]. Defendant

opposes the motion. See Def.’s Opp’n to Pls.’ Mot. for Voluntary Dismissal (“Def.’s Dismissal

Opp’n”) [ECF No. 38]. After considering both parties’ filings on the matter, the Court will grant

plaintiffs’ motion, and will dismiss the case with prejudice.


                                                 1
                                       I.     BACKGROUND

   A. Statutory and Regulatory Background

   As a recipient of federal funding under the IDEA, the District of Columbia must provide a

FAPE to all students who reside in the District and who have disabilities. See 20 U.S.C.

§§ 1400(d)(1)(A), 1412(a)(1).      This is typically accomplished through implementing an

individualized education program (IEP) at an appropriate school. See Sch. Comm. of Burlington

v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985). An IEP must be developed by a team that

includes the student’s parents, teachers, and other specialists, and must assess the student’s needs,

implement strategies to meet those needs, and include goals to measure the IEP’s effectiveness.

20 U.S.C. § 1414(d)(1)(A)–(B). The IEP must be revised at least annually to determine whether

the student is making progress. Id. § 1414(d)(4)(A). If the public school system cannot meet the

student’s needs, the student must be placed in a private school at public expense.             Id. §

1412(a)(10)(B)–(C).

       A parent who believes that her child’s IEP is inappropriate may request an administrative

hearing, referred to as a “due process hearing,” before an independent hearing officer. Id.

§ 1415(f)(1). After the hearing officer issues a determination (“hearing officer determination” or

“HOD”), the parent may seek review of the HOD in the appropriate federal district court. Id.

§ 1415(i)(2). The party challenging the HOD bears “the burden of persuading the court that the

hearing officer was wrong,” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C.

Cir. 2005), by a preponderance of the evidence, 20 U.S.C. § 1415(i)(2)(C). While these review

processes are underway, “the child shall remain in [her] then-current educational placement”—

thus maintaining the status quo—“unless the State or local educational agency and the parents

otherwise agree.” Id. § 1415(j). This guarantee is known as the IDEA’s “stay-put provision.”



                                                 2
   B. Factual Background

       Because no party has objected to the R&R’s factual findings, the Court adopts those factual

findings in full and incorporates by reference the detailed statement of the case’s background

contained in the R&R. The summary that follows is drawn from the R&R.

       N.S. is a student diagnosed with Attention Deficit Hyperactivity Disorder, executive

functioning disorder, an anxiety disorder, and a mixed expressive and receptive language disorder.

AR 7; R&R at 2. During the 2015–16 school year—the year at issue in this case—she was in the

ninth grade. During the 2008–09 school year, N.S. attended a private school where she did not

perform well. AR 61, 945–46. Her parents applied to DCPS to enroll her in the Lab School of

Washington, a private school for students with learning disabilities, but DCPS did not respond to

their application.   N.S.’s parents eventually enrolled her in the Lab School and filed an

administrative complaint against DCPS for failing to process her complaint in a timely manner,

alleging that this resulted in denying N.S. a FAPE. AR 61; R&R at 2. On January 29, 2010, a

hearing officer agreed with N.S.’s parents, and ordered DCPS to partially reimburse them for

tuition at the Lab School, and to develop an appropriate IEP for N.S. R&R at 2. N.S. remained at

the Lab School thereafter.

       In March 2015, N.S.’s parents attended a meeting at DCPS to develop an IEP for N.S. for

the 2015–16 school year. Three months later, N.S.’s parents received notice that N.S.’s IEP would

be implemented at Woodrow Wilson Senior High School (“Wilson”)—which meant that she

would have to leave the Lab School. N.S.’s parents objected to this placement, and therefore again

unilaterally placed N.S. in the Lab School for the 2015–16 school year and filed a due process

complaint against DCPS, asserting a number of procedural and substantive claims. AR 3, 455–

69; R&R at 3, 25–26.



                                                3
       The hearing officer held a two-day hearing before issuing his determination on February

4, 2016.     He considered extensive evidence, including the parties’ representations, the

documentation from this and prior IEP meetings, and expert testimony regarding N.S.’s

educational needs, all of which is summarized in the R&R. See id. at 3–21. Ultimately, he

concluded that DCPS provided N.S. with an appropriate IEP, selected Wilson as an appropriate

placement, and did not deny N.S.’s parents an opportunity to participate meaningfully in the

development of N.S.’s IEP and in the school placement decision. Therefore, the hearing officer

determined, N.S. was not denied a FAPE.

       Plaintiffs challenged the HOD in this Court. See Compl. [ECF No. 1]. This Court referred

the matter to Magistrate Judge Harvey for full case management. See Order, Mar. 15, 2016 [ECF

No. 5]. Judge Harvey considered the parties’ cross-motions for summary judgment and on January

31, 2017 issued a Report and Recommendation recommending that plaintiffs’ motion be denied

and defendant’s be granted. See R&R at 59. He first considered DCPS’s mootness argument:

DCPS asserted that because plaintiffs challenged the IEP for the 2015–16 school year—which was

already finished, and for which DCPS had already paid for N.S.’s education at the Lab School—

the issue was moot. Id. at 26–27. Judge Harvey concluded that the case was not moot under the

capable of repetition yet evading review doctrine. Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17

(1998)). This doctrine is particularly applicable here, Judge Harvey concluded, where the parties

continue to articulate “irreconcilable views” on certain aspects of N.S.’s IEP, making it extremely

likely that the same dispute will arise in the future. Id. at 28–29.

       Judge Harvey then explained that the IDEA requires a two-step inquiry when reviewing a

FAPE: a court must ask, first, whether “the state [has] complied with the procedures set forth” in

the IDEA in designing the IEP, and second, whether the IEP is “reasonably calculated to enable



                                                  4
the child to receive educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

Rowley, 458 U.S. 176, 206–07 (1982). Applying this standard, Judge Harvey determined that the

IEP and N.S.’s placement at Wilson met the requirements of the IDEA and provided N.S. with a

FAPE. Judge Harvey also determined that N.S.’s parents “were not denied access to the procedural

safeguards that guarantee parents both an opportunity for meaningful input in all decisions

affecting their child’s education and the right to seek review of any decisions they think

inappropriate.’” R&R at 55 (quoting Honig v. Doe, 484 U.S. 305, 311–12 (1988)).

       After Judge Harvey issued the R&R, he placed the case in abeyance pending the Supreme

Court’s not-yet-issued decision in Endrew F. See Order, Feb. 8, 2017 [ECF No. 29]. When

Endrew F. was issued in March 2017, Judge Harvey reviewed it and determined that supplemental

briefing was not necessary because Endrew F. did not require reconsideration of his conclusions

in the R&R. Plaintiffs then timely filed their objections to the R&R, asserting that Judge Harvey

had applied to two issues legal standards that are incorrect after Endrew F. See Pls.’ Objections

[ECF No. 34]. Defendant opposed plaintiffs’ objections but did not assert any objections of its

own to the R&R. See Def.’s Opp’n [ECF No. 35].

       Once the objections to the R&R were fully briefed, plaintiffs filed a motion for voluntary

dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(2), which allows dismissal

at the plaintiff’s request if the court determines that doing so would be proper. See Fed. R. Civ.

P. 41(a)(2). In that motion, plaintiffs argue that the case is now moot—despite taking the opposite

position in their earlier motion for summary judgment—because the 2015–16 school year has

already passed and N.S. is enrolled “in another program” for the present school year. See Pls.’

Mot. for Voluntary Dismissal [ECF No. 37] at 1. Notwithstanding its earlier view that the case

was moot, defendant opposes the motion, arguing that plaintiffs’ position is inconsistent with



                                                5
Judge Harvey’s determination that the case was not moot, such that plaintiffs are now estopped

from asserting mootness. Def.’s Dismissal Opp’n at 3, 5–7. Defendant also argues that it would

suffer legal prejudice if the case were dismissed. Id. at 9–10. For the reasons given below, the

Court will grant plaintiffs’ motion for voluntary dismissal and will dismiss this case with prejudice.

                                       LEGAL STANDARD

       Federal Rule of Civil Procedure 41(a)(2) states that, except in circumstances not present

here, “an action may be dismissed at the plaintiff’s request only by court order, on terms that the

court considers proper.” Dismissal under the rule “is not a matter of right, but is discretionary . . .

both as to whether a dismissal shall be allowed as well as to the terms and conditions to be imposed

if allowed.” Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 927 (7th Cir. 2007) (citation and

internal quotation marks omitted); see Indep. Fed. Sav. Bank v. Bender, 230 F.R.D. 11, 13 (D.D.C.

2005). To determine whether dismissal is appropriate, a court looks to (1) whether the motion

“was sought in good faith” and (2) whether the defendant “would suffer legal prejudice from a

dismissal at this stage in the litigation.” Indep. Fed. Sav. Bank, 230 F.R.D. at 13. “Because

dismissal of claims against a defendant rarely prejudices that party, the grant of a voluntary

dismissal is virtually automatic.” Blue v. D.C. Pub. Sch., 764 F.3d 11, 19 (D.C. Cir. 2014).

                                            ANALYSIS

       Plaintiffs argue that voluntary dismissal is warranted “in order to preserve judicial

resources and because there is really no case or controversey [sic] remaining because of changing

facts.” Pls.’ Reply to Def.’s Opp’n to Mot. for Dismissal (“Pls.’ Dismissal Reply”) [ECF No. 39]

at 1. The former argument is not particularly strong: given the late stage at which plaintiffs filed

their motion, judicial resources have already been expended and little would be saved by

dismissing. (Indeed, the need for this decision is testimony to that fact.) The latter rationale,



                                                  6
meanwhile, boils down to an argument that the case is moot. This is exactly the opposite of

plaintiffs’ earlier position that the case was not moot.1 However, plaintiffs are not alone in their

flip-flopping. Despite arguing before Judge Harvey that the case was moot, DCPS now argues

that the Court should reject plaintiffs’ mootness claim under judicial estoppel or the law of the

case doctrine, and that the Court should use its discretion under Rule 41(a) to deny plaintiffs’

motion. Def.’s Dismissal Opp’n at 5–9.

         This procedural do-si-do stems from a deeper disagreement over defendant’s substantive

rights in case of a dismissal. Defendant argues that, if the Court were to dismiss the case, plaintiffs

would simply “file a new due process complaint under the IDEA and seek public funding for their

new private placement” under the IDEA’s stay-put provision. Id. at 9. DCPS could then be forced

to pay for N.S.’s private-school education for another year while any administrative or judicial

appeals take place—a liability that, defendant argues, it would not incur if the Court were to adopt

Judge Harvey’s R&R and declare the 2015–16 IEP (and Wilson in particular) to be N.S.’s “then-

current educational placement.” See id. at 7, 9–10. Plaintiffs, for their part, argue that this is a red

herring. By dismissing the case, they say, the HOD becomes the final decision on the 2015–16

IEP, and the Hearing Officer’s “finding that Wilson is appropriate becomes the new placement on

record.” Pls.’ Dismissal Reply at 3. Therefore, N.S. would no longer have stay-put protection if

her parents sought to challenge a later IEP; DCPS would not be responsible for paying for her

education at a private school. See id.



         1
          Plaintiffs point to only two “changing facts” to support their dismissal motion: (1) the fact that they have
been seeking reimbursement for the 2015–16 school year, which has already passed and for which defendant already
paid through the IDEA’s stay-put provision; and (2) the parents’ placement of N.S. “in another program” for the 2017–
18 school year. Pls.’ Mot. for Voluntary Dismissal at 1. The former fact was already true when plaintiffs argued that
the case was not moot, and when Judge Harvey agreed with them. As for the latter, because Judge Harvey’s mootness
determination was premised on the likelihood that these parties would engage in similar litigation over future IEPs,
N.S.’s new placement might not alter the capable of repetition but evading review analysis. See R&R at 27–29.
However, it is relevant to the Rule 41(a)(2) dismissal analysis, as discussed below.

                                                          7
         In attempting to resolve this dispute, the Court faces both a legal and a factual uncertainty.

On the legal side, the D.C. Circuit has never defined what, exactly, constitutes legal prejudice for

purposes of Rule 41(a)(2). It has stated that “the parameters of ‘legal prejudice’ are not absolutely

clear,” but that it “means ‘something other than the necessity that [a] defendant might face of

defending another action.’” Conafay v. Wyeth Labs. (“Conafay II”), 841 F.2d 417, 420 (D.C. Cir.

1988). This rule appears to be the law across the country. See 9 Charles Allen Wright & Arthur

R. Miller, et al., Federal Practice & Procedure § 2364 n.20 (3d ed. Apr. 2017) (collecting cases).

         Beyond this general principle, however, appellate courts have divided on what factors to

consider when measuring prejudice. A majority of the circuits have adopted multi-factor tests

similar to the one developed by the Seventh Circuit, which weighs: (1) the defendant’s “effort and

expense”; (2) “excessive delay and lack of diligence” by the plaintiff in “prosecuting the action”;

(3) the plaintiff’s explanation of “the need to take a dismissal”; and (4) “the fact that a motion for

summary judgment has been filed by the defendant.” Kovalic v. DEC Int’l, Inc., 855 F.2d 471,

474 (7th Cir. 1988) (quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969)).2 The

Fifth, Ninth, and Eleventh Circuits, however, have rejected certain prongs of this test as

insufficient to warrant denying a voluntary dismissal motion, instead focusing on whether the

defendant would lose a legal claim or defense in future litigation. See Robles v. Atl. Sounding

Co., 77 Fed. App’x 274, 275–76 (5th Cir. 2003) (unpublished); Westlands Water Dist. v. United




         2
           See Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000); D’Alto v. Dahon Cal., Inc., 100 F.3d
281, 283 (2d Cir. 1996); Howard v. Inova Health Care Servs., 302 Fed. App’x 166, 178–79 (4th Cir. 2008)
(unpublished); Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009); Donner
v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013); Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir.
1996); see also Ferguson v. Eakle, 492 F.2d 26, 29 (3d Cir. 1974) (holding that [1] “financial prejudice requiring . . .
the preparation and conduct of new discovery and proceedings,” [2] “the emotional and psychological trauma
associated with the experience of having been ready for trial in a federal court and then told that the proceedings would
be started once again,” and [3] “the non-financial prejudice reflected by the uncertainty over” defendants’ legal rights
together constituted prejudice).

                                                           8
States, 100 F.3d 94, 96–97 (9th Cir. 1996); Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1255–

56, 1258–59 (11th Cir. 2001).

         The D.C. Circuit appears to lean toward the more restrictive side of this divide. It has ruled

that neither “los[ing] an opportunity for a favorable final disposition of the case,” nor a plaintiff’s

weak explanation for the voluntary dismissal request, is grounds for denying a Rule 41(a)(2)

motion if there is no prejudice to defendant’s legal claims. Kellmer v. Raines, 674 F.3d 848, 852–

53 (D.C. Cir. 2012) (alteration in original) (citation and internal quotation marks omitted). The

D.C. Circuit has also stated that the granting of voluntary dismissal motions should be “virtually

automatic.” Blue, 764 F.3d at 19. However, in the absence of more specific guidance, several of

the courts in this district have themselves adopted the Seventh Circuit’s four-part test.3 Moreover,

several of the circuits that have not explicitly adopted that test—including the D.C. Circuit—have

either suggested or held that a district court acts within its discretion in rejecting a Rule 41(a)(2)

motion when the defendant had already filed a summary judgment motion before the plaintiff

moved to dismiss.4


         3
           See, e.g., Queen v. Schmidt, No. CV 10-2017 (PLF), 2016 WL 2757359, at *2 (D.D.C. May 12, 2016);
Mittakarin v. InfoTran Sys., Inc., 279 F.R.D. 38, 41 (D.D.C. 2012); In re Fed. Nat. Mortg. Ass’n Sec., Derivative,
ERISA Litig., 725 F. Supp. 2d 169, 176 (D.D.C. 2010), rev’d and remanded sub nom. Kellmer v. Raines, 674 F.3d
848 (D.C. Cir. 2012); In re Vitamins Antitrust Litig., 198 F.R.D. 296, 304 (D.D.C. 2000); Piedmont Resolution, LLC
v. Johnston, Rivlin & Foley, 178 F.R.D. 328, 331 (D.D.C. 1998).
         4
           See Estate of Ware v. Hosp. of the Univ. of Penn., —F.3d—, 2017 WL 4105935, at *10 (3d Cir. Sept. 18,
2017) (stating that “we have no doubt the District Court acted within its discretion” in denying a Rule 41(a)(2) motion
when the defendant “would have faced the prospect of potentially relitigating, at some later date, claims it had put
significant time and resources into defending and already litigated to the summary-judgment stage”); Hartford Acc.
& Indem. Co. v. Costa Lines Cargo Servs., Inc. 903 F.2d 352, 360 (5th Cir. 1990) (“Where the plaintiff does not seek
dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its
discretion, refuse to grant a voluntary dismissal.”); McBride v. JLG Indus., Inc., 189 Fed. App’x 876, 878 (11th Cir.
2006) (unpublished) (similar); Conafay II, 841 F.2d at 420 (suggesting that courts may deny voluntary dismissal
motions if a “summary judgment motion had been pending when the voluntary dismissal request was made”); Conafay
v. Wyeth Labs. (Conafay I), 793 F.2d 350, 352 (D.C. Cir. 1986) (same); see also Terrovona v. Kincheloe, 852 F.2d
424, 429 (9th Cir. 1988) (“[S]ince the magistrate had already issued his report and recommendation when the motion
was filed, the district court’s refusal to use its discretion to dismiss the petition under Fed. R. Civ. P. 41(a)(2) is
reasonable.”); see also Hayden v. Westfield Ins. Co., 586 Fed. App’x 835, 842 (3d Cir. 2014) (unpublished) (“Chief
among the factors to consider in determining whether a defendant will suffer prejudice are the extent to which litigation
has progressed and the extent to which the defendant will be exposed to new litigation in another forum.” (emphasis
added)); cf. In re Smith, 114 F.3d 1247, 1250 n.4 (D.C. Cir. 1997) (noting that “it would prejudice the government to

                                                           9
        It may matter which legal prejudice test the Court applies. Under the four-part majority

test, the Court would consider defendants’ effort and expense in litigating this case for nineteen

months; plaintiffs’ promptness in prosecuting the case; the strength (or lack thereof) of plaintiffs’

reasons for dismissing at this late juncture; and the fact that summary judgment motions have been

pending for over a year and that Judge Harvey has already released an R&R. These factors—

particularly the last—might well lean toward defendants’ side. Under the more restrictive minority

test, however, the calculus would look quite different. The fact that summary judgment motions

were already pending when plaintiffs filed their voluntary dismissal motion might give the Court

discretion to deny plaintiffs’ motion. See Conafay II, 841 F.2d at 420. But the other factors just

mentioned would become irrelevant. The D.C. Circuit’s admonition that dismissal grants be

“virtually automatic,” Blue, 764 F.3d at 19—and the general rule that “[p]laintiffs are masters of

their complaints,” Webster v. Reprod. Health Servs., 492 U.S. 490, 512 (1989)—would lean

strongly against a denial. The Court would thus have to resolve the parties’ substantive dispute: if

this case were to be dismissed, would DCPS be forced to pay N.S.’s private-school tuition under

the stay-put provision during any future litigation? Because DCPS could lose a legal defense to

any claim for stay-put funding, the answer to this question may well prove decisive in a legal

prejudice inquiry.

        This inquiry, however, leads to the second, factual uncertainty the Court faces. The parties

litigate under the assumption that the school at which N.S.’s 2015–16 IEP should have been

implemented would be N.S.’s “then-current educational placement,” and would therefore

determine any stay-put protection for this or future years. The IDEA does not define “educational



permit withdrawal of [a] claim after the government’s brief was filed” on that claim, and citing Conafay II). But cf.
Arias v. Cameron, 776 F.3d 1262, 1273 (11th Cir. 2015) (“[T]his circuit has declined to adopt a bright-line rule
precluding a district court from granting a Rule 41(a)(2) voluntary dismissal without prejudice when a motion for
summary judgment is pending.”).

                                                         10
placement” for purposes of the stay-put provision, but courts in this Circuit have generally held

that “the dispositive factor in deciding a child’s ‘current educational placement’ should be the IEP

. . . actually functioning when the ‘stay put’ is invoked.” Wimbish v. District of Columbia, 153 F.

Supp. 3d 4, 11 (D.D.C. 2015) (citation omitted). For instance, N.S. received stay-put funding at

the Lab School for 2015–16 because that had been N.S.’s prior placement, and N.S.’s parents

disagreed with DCPS’s decision to move her to Wilson. Pls.’ Dismissal Reply at 3; see Susquenita

Sch. Dist. v. Raelee S. By & Through Heidi S., 96 F.3d 78, 83 (3d Cir. 1996). In arguing over

whether the resolution of the 2015–16 IEP matters for future litigation, however, the parties have

not discussed the IEP developed for N.S.’s 2016–17 school year. It is undisputed that DCPS did

develop an IEP for that year, and that plaintiffs had not filed a due process complaint to challenge

that IEP as of January 2017. See D.C.’s Response to Pls.’ Supp. Br. [ECF No. 25] at 8; Supp.

Mem. in Support of Pls.’ Mot. for Summ. J. [ECF No. 24] at 10. It is not clear, however, whether

plaintiffs have challenged the 2016–17 IEP in the intervening months. Plaintiffs hint that they

have, stating that “no other placement [besides the Lab School] has been agreed upon by the parties

and no judicial process has been completed” since 2013. Pls.’ Dismissal Reply at 3. But neither

party has definitively clarified whether the 2016–17 IEP was implemented or challenged.

       The answer to this factual question, like the answer to the standard-of-review question,

could make a great difference to the outcome of the parties’ dispute. “[W]hen a plaintiff has

challenged the student’s educational placement in place at the time the ‘stay-put provision’ is

invoked, courts traditionally treat the IEP in place prior to the challenged IEP as the controlling

IEP for purposes of the ‘stay-put provision.’” G.B. v. District of Columbia, 78 F. Supp. 3d 109,

113 (D.D.C. 2015) (citation omitted). If plaintiffs accepted the 2016–17 IEP, then the question of

N.S.’s educational placement for 2015–16 may be irrelevant in challenges to any future IEPs. If



                                                11
plaintiffs were later to challenge, say, N.S.’s 2017–18 IEP, the 2016–17 IEP and its location of

service might be controlling for stay-put purposes. On the other hand, if plaintiffs have challenged

the 2016–17 IEP as well, and plaintiffs were to invoke stay-put protection before that dispute was

resolved, then the parties could not rely on the 2016–17 IEP (because it would itself still be under

challenge). They might have to look back to the 2015–16 IEP to determine whether DCPS needed

to pay for N.S.’s future private schooling. If this were the case, DCPS could have a strong

argument that dismissing instead of deciding this case could prejudice DCPS in future litigation.

       Normally, Rule 41(a)(2) requests ask to dismiss cases without prejudice, thus allowing

plaintiffs to refile the same case and re-raise the same issues. Under such circumstances, the

quandaries just discussed would pose great difficulties. Happily, however, the Court need not

resolve either the legal or the factual dispute today. This is because plaintiffs have requested that

the Court dismiss this case with prejudice. See Mot. for Voluntary Dismissal. “Dismissal with

prejudice ‘operates as a rejection of the plaintiff’s claims on the merits and [ultimately] precludes

further litigation’ of them.” Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (quoting

Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995)). Dismissal would therefore give defendant

what it desires: plaintiffs could no longer claim that the 2015–16 IEP violated the IDEA, or deny

that that IEP (and Wilson) constitutes N.S.’s “then-current educational placement” for purposes of

the stay-put provision.

       Indeed, plaintiffs concede that dismissal would mean that “the Hearing Officer finding that

Wilson is appropriate becomes the new placement on record,” and that, “[b]y withdrawing N.S.

from Lab and dismissing this appeal with prejudice, N.S. no longer has any stay-put protection.”

Pls.’ Dismissal Reply at 3. This is in keeping with the decisions of several courts of appeals,

including the D.C. Circuit, that the stay-put provision does not mandate public funding when



                                                 12
parents unilaterally remove their child from the then-controlling public placement and place the

child in a private school while they challenge a proposed IEP. See N.W. ex rel. J.W. v. Boone

Cnty. Bd. of Educ., 763 F.3d 611, 617 (6th Cir. 2014); Susquenita Sch. Dist., 96 F.3d at 83;

Leonard by Leonard v. McKenzie, 869 F.2d 1558, 1564 & n.5 (D.C. Cir. 1989).5 Given plaintiffs’

concessions and the relevant case law, dismissing this case would work no legal prejudice against

defendant under any of the standards outlined above. Hence, the Court will follow the default

principle that Rule 41(a)(2) motions should be granted.6

                                                  CONCLUSION

         For the reasons explained above, the Court will grant plaintiffs’ motion for voluntary

dismissal and dismiss this case with prejudice. A separate order will be issued on this date.

                                                                                 /s/
                                                                          JOHN D. BATES
                                                                     United States District Judge

Dated: September 28, 2017

         5
            The Sixth Circuit has said that, when a school district has sought to place a child in a school that she has
never attended—as is the case with Wilson here—the student’s “placement—for purposes of the stay-put provision—
is the last agreed-upon school that [she] attended,” rather than the school in the controlling IEP. N.W. ex rel. J.W.,
763 F.3d at 618 (emphasis added). However, the courts in this circuit have not so held. See, e.g., Leonard by Leonard,
869 F.2d at 1564 (holding that plaintiffs could not be compensated under stay-put for keeping child in private school
when educational placement had changed to public school the student never attended). And, in any case, here that
placement would be the Lab School, not the school to which N.S.’s parents have now moved her. In future litigation,
DCPS may rely on the preclusive effect of a dismissal with prejudice and on plaintiffs’ concession that “withdrawing
N.S. from Lab” means that “N.S. no longer has any stay-put protection.” Pls.’ Dismissal Reply at 3.
          6
            Given this disposition of the 41(a)(2) question, defendant’s judicial estoppel and law of the case arguments
fall by the wayside. When examining judicial estoppel, at least three factors are relevant: (1) whether “a party’s later
position [is] ‘clearly inconsistent’ with its earlier position”; (2) “whether the party has succeeded in persuading a court
to accept that party’s earlier position”; and (3) “whether the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” New Hampshire v.
Maine, 532 U.S. 742, 750–51 (2001) (citations omitted). Plaintiffs’ current position, while certainly an about-face
from their position in front of Judge Harvey, is not “clearly inconsistent” in the sense required for judicial estoppel.
It is possible for this case not to be moot at one time and for changing facts to make an appeal of the HOD no longer
worth pursuing at a later time. Moreover, as discussed above, dismissing with prejudice based on this switch in
position would neither advantage plaintiffs nor disadvantage defendant. As for law of the case, the D.C. Circuit has
stated that “the doctrine ‘is a prudential rule rather than a jurisdictional one,’ motivated by a ‘practical concern for
judicial economy.’” United States ex rel. Dep’t of Labor v. Ins. Co. of N. Am., 131 F.3d 1037, 1043 n.12 (D.C. Cir.
1997) (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739–40 (D.C. Cir. 1995)). Here, no judicial economy
interest would be served by denying the voluntary dismissal motion in order to instead decide the case on the merits,
when a dismissal with prejudice under the current factual circumstances would have the same effect.

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