Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PARENTS J.S. AND L.S.,

Plaintiffs,

v. Case No: 8:23-cv-2800-CEH-TGW

THE SCHOOL BOARD OF

HILLSBOROUGH COUNTY,

FLORIDA,

Defendant.

ORDER

This action comes before the Court on Plaintiffs Parents J.S. and L.S.’s Motion

for Summary Judgment (Doc. 17), Defendant School Board of Hillsborough County,

Florida’s response (Doc. 20), and Plaintiffs’ reply. (Doc. 24). After careful

consideration, and being fully advised in the premises, Plaintiffs’ Motion will be

denied.

I. FACTS1

Plaintiffs are Parents J.S. and L.S. who bring this action on behalf of their child

A.H.S. Doc. 1 ¶ 6. Defendant Hillsborough County School Board (“School Board”)

administers public education in Hillsborough County, Florida. Id.

1 The facts are undisputed by Defendant in its response to the Motion for Summary

Judgment. Doc. 20 at 4–6.

A.H.S. was enrolled at a Hillsborough County public school for preschool,

kindergarten, and first grade for the 2017–2018, 2018–2019, and 2019–2020 school

years, respectively. Doc. 1, Ex. A at 52.2 A.H.S. is entitled to special education services

and benefits under the Individuals with Disabilities Education Act (“IDEA”). Id. ¶ 7.

Under IDEA, she is entitled to a free and appropriate public education through an

Individualized Education Plan (“IEP”). Id. at 65.

On March 8, 2022, Parents filed an administrative due process complaint. Id. at

49. Parents argued that the School Board owed A.H.S. compensatory education and

violated IDEA, the Americans with Disabilities Act, and the Rehabilitation Act. Id. at

48–49. A twelve-day due process hearing was held before Administrative Law Judge

(“ALJ”) Brittany O. Finkbeiner of the Florida Division of Administrative Hearings

(“DOAH”). Id. at 48. On August 29, 2023, the ALJ issued Findings of Fact,

Conclusions of Law, and a Final Order (“Final Order”). Id. at 48–75. In the Final

Order, the ALJ awarded A.H.S. 150 hours of compensatory education and denied all

other forms of requested relief. Id. at 74.

In November 2023, Plaintiff offered in writing to settle all IDEA and Section

504 claims raised in the DOAH proceedings plus the ADA claims that were not raised

in DOAH for $26,752.50. Doc. 17 at 3. Defendant accepted the offer. Id.

Parents now bring this action seeking partial reversal of the ALJ’s Final Order

and enforcement of the Final Order’s requirement that the School Board provide

2 Unless noted otherwise, all page number references herein are to the page numbers

generated by CM/ECF in the header of each document.

compensatory education to A.H.S. Doc. 1 ¶ 2. The School Board filed an answer (Doc.

15), in which it raises as an affirmative defense that Parents entered a valid oral

settlement resolving all the claims in this action. Doc. 15 at 25–26. Parents filed the

instant motion for summary judgment seeking to enforce the settlement agreement

between the parties. Doc. 17. The School Board responded and Parents replied. Docs.

20, 24.

II. STANDARD

Summary judgment is appropriate only when the court is satisfied that “there

is no genuine issue of material fact and that the moving party is entitled to judgment

as a matter of law” after reviewing the “pleadings, the discovery and disclosure

materials on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining

whether a genuine issue of material fact exists, the Court must consider all the

evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation,

Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a

reasonable jury, considering the evidence presented, could find for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material”

if it may affect the outcome of the suit under governing law. Id.

The moving party bears the initial burden of stating the basis for its motion

and identifying those portions of the record demonstrating the absence of genuine

issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be

discharged if the moving party can show the court that there is “an absence of

evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only

when that burden has been met does the burden shift to the non-moving party.” Clark

v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

“[I]n order to survive summary judgment, the nonmoving party must set forth

specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny

Christian Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson,

477 U.S. at 249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.”

Middlebrooks v. Sacor Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a]

‘mere existence of a scintilla of evidence’ cannot suffice to create a genuine issue of

material fact.” Johnson, 826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

In their Motion for Summary Judgment, Parents seek an award of $26,752.50

based on the parties’ November 2023 settlement agreement. Doc. 17 at 4. Parents

argue that the parties entered into a valid oral settlement agreement, which released

all the claims that they raise in these proceedings. Id. Parents indicate that the School

Board does not dispute that there is a valid oral settlement agreement because it

admitted as such in its first affirmative defense. Id.

In response, the School Board argues that Parents’ claims under the complaint

are not actionable because they admit that the claims were released pursuant to the

parties’ settlement agreement. Doc. 20 at 6–7. The School Board also argues that

Parents cannot seek relief based upon the settlement agreement because they never

raised this issue in the Complaint. The School Board asserts that Parents are in turn

attempting to raise a new theory of liability at summary judgment. The School Board

argues that the Court should deny the motion as a result.3 Id.

As a threshold matter, Plaintiffs’ Motion for Summary Judgment is

procedurally deficient for failing to adhere to the requirements of Federal Rule of

Civil Procedure 56(c). Plaintiffs’ statement of undisputed facts does not cite to any

evidence in the record. Doc. 17 at 2–3. Additionally, Plaintiffs alleged undisputed

statement of facts contains facts that Defendant disputes. Doc. 20 at 4–6. The Court

could deny summary judgment on this basis alone. See Magalhaes v. Moore Prop.

Mgmt., LLC, No. 2:21-CV-19-SPC-NPM, 2021 WL 1428314, at *2 (M.D. Fla. Apr.

15, 2021) (“Failure to follow this procedure is grounds alone for dismissing a motion

for summary judgment without prejudice.”). However, the Court will address the

merits of Plaintiffs’ argument.

“At the summary judgment stage, the assertion of an additional, separate basis

for entitlement to relief is a fundamental change that requires amendment of the

complaint under Fed. R. Civ. P. 15(a). This is so because liberal pleading does not

require that ... defendants must infer all possible claims that could arise out of the

facts set forth in the complaint.” Colardo-Keen v. Rockdale Cnty., Georgia, 775 F. App'x

3 The School Board also argues that Parents’ realization that they released their claims via a

settlement should result in dismissal of the case. Doc. 20 at 7. The School Board reasons

that the settlement raises the question of whether there is a live controversy and whether this

Court has jurisdiction over the matter. Id. at 9. The School Board has indicated that it will

raise this issue with the Court through a separate filing. Id. Thus, the Court does not

consider it here.

555, 571 (11th Cir. 2019) (citation modified). “Plaintiffs cannot raise a new theory of

liability at summary judgment.” Cont'l 332 Fund, LLC v. Kozlowski, No. 2:17-CV-41-

SPC-MRM, 2020 WL 2573292, at *2 (M.D. Fla. May 21, 2020), aff'd sub nom. Cont'l

332 Fund, LLC v. Albertelli, 2021 WL 3184586 (11th Cir. July 28, 2021).

The School Board is correct that Parents cannot seek a form of relief at

summary judgment, that was not raised in their complaint. The Complaint does not

assert any causes of action concerning the oral settlement. Thus, it is improper for

Parents to ask for this form of relief in a motion for summary judgment, without

amending their complaint. Although a “court may dispose of affirmative defenses by

summary judgment,” here, Parents do not seek to dispose of the School Board’s

defense that Parents’ entered into a valid oral agreement. See State Farm Mut. Auto.

Ins. Co. v. LaRocca, 685 F. Supp. 3d 1354, 1360 (M.D. Fla. 2023). Rather, Parents

admit that there is a valid oral settlement agreement releasing all the claims that they

raise in these proceedings and they seek affirmative relief, $26,752.50, based on

Defendant’s affirmative defense. Accordingly, to the extent that the motion for

summary judgment is based on a November 2023 settlement agreement, a claim not

raised in the Complaint, the motion is due to be denied.

In their reply, Parents ask the Court to alternatively grant summary judgment

in favor of the School Board providing 150 hours of compensatory education to

A.H.S. or convene a settlement conference with the parties per Federal Rule of Civil

Procedure 16.

The Court will not consider grounds for summary judgment that a party raises

for the first time in a reply. See Herring v. Sec'y. Dep't of Corr., 397 F.3d 1338, 1342

(11th Cir. 2005) (“As we repeatedly have admonished, ‘arguments raised for the first

time in a reply brief are not properly before a reviewing court.’”). In their Motion for

Summary Judgment, Parents only ask that summary judgment be granted based on

the oral settlement agreement between the parties. Accordingly, Parents’ new ground

for summary judgment raised in its reply will not be considered.*

Accordingly, it is hereby ORDERED:

1. Plaintiffs’ Motion for Summary Judgment is DENIED, as Plaintiffs

seek summary judgment on a claim not raised in their Complaint.

2. Given the parties’ briefing on the Plaintiffs’ Motion for Summary

Judgment, the Court orders the parties to mediate this case. Within

fourteen (14) days, the parties shall file a joint notice identifying the

mediator and the date of the mediation hearing.

DONE and ORDERED in Tampa, Florida on March 23, 2026.

Chakene Ldardsa Mo TDA pl ell

Charlene Edwards Honeywell

United States District Judge

Copies furnished to: Counsel of Record; Unrepresented Parties

“ Defendant did not file a cross motion for summary judgment and the Court declines to

convert Defendant’s response into a motion for summary judgment.