When the judge says seven days, it means seven days!

Some decisions from the 5th Circuit make grand pronouncements about the law. Others deal with more mundane matters, like deadlines. Such is the decision in Lozano v. Donna ISD.  This is a case filed by the parent of a student who was allegedly sexually assaulted by a DISD teacher.  The suit alleged that the district should be held liable for this as a violation of Title IX.  But the district court dismissed the suit because the parent “failed to plead facts showing that Donna ISD had actual knowledge” that kids were at great risk of being sexually harassed.  You have to plead FACTS—not just conclusions.  Saying that the district “should have known” is a conclusion. The plaintiff has to allege FACTS that show why the district “should have known.”

However, the district court gave the parent an opportunity to fix this problem and keep the case alive. The court allowed the parent to file an amended complaint, but it had to be done within seven days.  It wasn’t.  So when the district then asked the judge to completely dismiss the case, the judge did so.

Then the parent appealed to the 5th Circuit, arguing that the lower court had abused its discretion and after all, the 7-day deadline was a “mere technicality.”  The court did not see it that way:

…failing to file an amended complaint pursuant to an order by the district court does not constitute the sort of “mere technicality” discussed [in an earlier case].

Case dismissed.

This case carries an obvious lesson for the lawyers. When the judge says you have seven days to file something, you need to file it within seven days. In fact, six would probably be a good idea.  As for legal principles, the case is yet another illustration of the fact that a school district is not liable just because an employee does a bad thing.  There has to be some evidence to show that the higher ups had at least an inkling of something.

The case is Lozano v. Donna ISD, decided by the 5th Circuit on May 13, 2016.  The court ordered that the opinion go “unpublished” in the official legal reporters, but we found it on the 5th Circuit’s website, Docket No. 15-41493.  And here it is!  http://www.ca5.uscourts.gov/opinions/unpub/15/15-41493.0.pdf


 File this one under: PRACTICE AND PROCEDURE

Tomorrow is Toolbox Tuesday! We take a look at the things the principal can do unilaterally.