IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE, DISTRICT OF TENNESSEE

KIMBERLY LOPEZ, asguardian,next

)

friend and parent of GILBERTO LOPF'Z, a

minot, individually, et al..

Plaintiffs,

V.

)

)

METROPOLITAN GOVERNMENT

)

OF NASHVILLE AND DAVIDSON

)

COUNTY

)

)

and

)

)

GENESIS LEARNING CE,NTE,RS

)

)

Defendants.

NO.3:07-cv-799 JURY DEMAND JudgeEchols Mugisttate Judge Gdffin Complaint-ClassAction

FOURTH AMENDED COMPLAINT

Kimberly Lopez, as guatdian, next friend and patent of Gilbeto Lopez (hereinafter,

collectively, "Plaintiffs"), fot their cause of action against Defendants The Board of

Education for the Metropolitan Nashville Public Schools, (heteinafter "Metro"), and

Genesis Leaming Centets, (rereinafter "Genesis"), state as follows:

PARTIESAND VENUE

1.. Plaintiff l(imbedey Lopez is the natutal mother of Gilberto Lopez, a special

needs child suffering ftom autism and mild mental retardation who attended school at

Genesis Academy in Nashville, Tennessee.

2.

Gilbeto was nine (9) years old at the time of the incidents described herein.

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3.

Defendant Metro, is a political entity responsible for oversight, rule making,

compliance with state and Fedetal law, and control of the Metto Nashville Public School

System, (hereinaftet "MNPS'), which Metto oversees.

4.

Defendant Genesis operates Genesis Academy, (heteinaftet collectively

"Genesis'), which is a private school facitty with which Defendant Metro contracts to

provide a free and approptiate educational setting fot special needs students whom

Defendant Metro deems cannot be ptoperiy cared fot in a normal public school

environment.

5.

The acts, errors and omissions complained of herein were committed within

Davidson Countf, Tennessee,and as such, this Coutt has proper venue and jurisdiction over

the matter under the laws of Tennessee.

6.

The Plaintiffs' complaint alleges a cause of action based in violation of

fedetal law.

7.

This lawsuit was originally filed in state court and was removed to Federal

Court by Defendant Metro on August 2,2007, prior to Defendant Genesisbeing added as a

named p^rry.

B.

At all times petinent hereto, both Defendants were acting undet color of

state law and benefited ftom the receipt of fedeml financial assistance.

ALLEGATIONS OF FACT

9.

For the academic year 2006-2007, Gilberto Lopez was a student at Genesis

Academy, a school providing servicesto the MNPS.

10. Gilberto v/as transported to and from the school facility in a public school

bus ptovided by MNPS.

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71,. Genesis is a school to which MNPS assigns childten with behavioral problems and disabilities.
1,2. Genesis is a pdvate facthty that conftacts with Metro to ptovide a free and appropriate education to special needs students who are deemed unable to attend other public schools within the MNPS becauseof the students' need for additional oversight.
1,3. Defendant Genesis, by and through its agents and employees, exercised discretion as to which students Defendant Metto placed at Genesis Academy and who was accepted.
14. A "cumulative ftle," containing all pettinent tecotds on a student including, discrplinary record, academic tecord, and, as applicable, Individualized Education Ptogram (IEP), behavioral plans, bus safety plans, and psychoiogical testing is maintained by the school to which any student is assigned. A "special educadon file" is maintained by Metro on all special education students which includes, as applicable, Individuabzed Education Program (IEP), behavioral plans, bus safety plans, and psychological testing.
15. I(olby Hattis was a nineteen (79) year old male student in the MNPS who was assignedto Genesis by MNPS tn early 2006.
16. Genesis officials accepted Harris as a student, and he began as a student at Genesis Academy in April of 2006.
1,7. Genesis officials were informed pdor to Hatris starting at Genesis Academy that he was a special needs student and had a history of inapptopdate sexual conduct with othet students at othet schools he had attended.
18. Genesis did not obtain Haris'cumulative file from his prior school or obtain Hards' "special education file" from Defendant Metto until |anuary of 2007, almost a yeat after Harris started at the school.
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1,9. Upon receipt of Hanis'cumulative file by Genesis rnJanuary 2007,no one with Genesis reviewed the substantive content of Harris' file until after the incident that is the subiect m^ttet of this lawsuit.
20. Haris had a history of sexually inapptoptiate conduct, including, but not limited to, an attempt to engage in a sexual assault against another young boy in 2005 on a school bus which invoived an attempt to compel the young boy to petfotm otal sex on Harris. Genesis officials were not awate of the fuli bteadth or scope of Han{s' record of prior instances becausethey had not obtained ot reviewed Harrjs' cumulative file.r
27. In compiling Hattis'most recent IEP only months befote the incident that is the subject matter of this lawsuit, decision making officials with Defendant Metto reviewed Harris' cumulative and special education f1le and were aware of Harris' history of sexually inappropriate conduct, both at the time he was assignedto Genesis and assignedto a school bus on which the incident that is the subiect m^tter of this lawsuit occured. t
22. Defendant Metro knew Hattis was a danget and that he required intensive supervision at all times, including adequate supervision of Hards on the school bus, ovet and above having a school bus driver to monitot him or at a minimum implementation of a school bus safety progtam.
23. As a student at Genesis, Gilbetto Lopez, due to his mental condidon, was builied and preyed upon by othet students on the school bus, who encouraged Gilbetto to "thfow" gang hand signs and obscene gestures and who placed stolen property in his pockets.
24. In Apdl2007, KimberlyLopez contactedMNPS and tequesteda monitor on the school bus to ensure that het son and the other students were appropriately supervised. t The specific contentof Kolby Harris' cumulative file is the subject of an agreedprotective order entered in this casethat prohibits the Plaintiffs from outlining, in detail, Harris' history in this Amended Complaint.
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25. Kimbedy Lopez was infotmed by the Special Education Department of MNPS tl:'at arangjne fot monitodng on school buses was the responsibility of the MNPS transpottation department.
26. \When lCmbedy Lopez contacted the transpottation depattment of MNPS, she was told that ananglng for monitoring on school buses was the responsibility of the Special Education Department of MNPS.
27. Kimbedy Lopez contacted of{icials for Defendant Genesis to ask about the placement of a monitor on the school bus.
28. Defendant Metro had a policy and ptactice in place wheteby school officials were instructed and directed not to include school bus monitors in any student's IEP undet any circumstance. This began, upon information and belief, shortly after a Department of Education Offrce of Civil fughts Determination critical of the special educadon school bus practiceswas issuedin 2000.
29. Offrcials with Defendant Genesis were ^-w^te of this policy and went along with the directive and did not requite placing monitors in any IEP.
30. By not including a monitor for a student in an IEP, Defendant Metto was able to claim insufficient funding ^s a basis fot not ptoviding a school bus monitor to a student even when having a monitot would be necessary to ensuring an appropriate education fot a special needs student.
31,. Gilbetto's IEP ftom the Chicago school system in place at the time he ftansfered to MNPS inciuded a requirement for school bus monitoring.
32. No monitor was evet assigned by Defendants to Gilberto Lopez's bus despite repeated efforts by I(mbedy Lopez.
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33. As a result of the continued abuse,Ms. Lopez then asked that het son be ftansfered from the regular school bus to a smallet school bus designated fot special needs students,at the suggestionof Defendants'officials.
34. Offrcials with Defendant Genesis were aware of these requests fot assistance by Ms. Lopez.
35. On the special needs school bus, instances of bullying and hatm against Gilberto Lop ez continued.
36. Gilbeto was to be placed in a special hatness and seated on the first seat of the school bus while being transpotted at the time of the incident that is the subiect matter of this lawsuit.
37. No restrictive harnesswas used on the date of the incident that is the subiect matter of this lawsuit.
38. Less than one week after being transfered, on May 7, 2007, Gilberto Lopez was sexually assaulted, and compelled to perform otal sex on Kolby Harris, while being transported on the special needs school bus, (hereinafter refered to as the "incident").
39. The incident was tecotded on a MNPS school bus video cameta. 40. Kimbedy Lopez was not notified of the attack upon het child by anyone until officials from Defendant Genesis contacted her a week aftet the incident. 41,. From the time of the incident until Ms. Lopez was notified, Harris and Gilberto rode on the samebus despite Hattis'previously sexual assaulton Gilberto. 42. Defendant Metto knew of the sexual assault immediately after it happened and still permitted Harris and Gilberto to dde on the same bus in reckless disregatd for Gilberto's safety.
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43. When Ms. Lopez spoke with Genesis officials about the incident, she was toid by Melissa Adams, a ditectot urith Defendant Genesis, that Mrs. Adams knew of the incident but would not discuss the matter with Ms. Lopez.
44. The incident involving Gilbetto and Harris occured within feet of the school bus ddver driving on the day of the incident, Gloria Smith, as Ms. Smith, an employee of Metro, operated the bus within the scope of het employment.
45. Ms. Smith was capable of observing all children on the school bus during the incident as she dtove and had a duty to do so. Because of Gilberto Lopez's mental condition, he is defenselessand at special risk fot harm. The Defendants had a duty to anacrpate harm to Gilbeto.
46. The Defendants, by and through employees of Defendants, knew or should have known of the dsk of hatm to Gilberto Lopez given the pdot instances of abuse perpetated by I(olby Harris involving similar instances of sevete sexual imptoper behavior by Mr. Haris.
47. Haris had a history of wtongfrrl behavior including othet prior instances of sexualmisconduct and abuse.
48. Defendant Metro was aware of these instances of sexual misconduct bv Mt. Hards and took no steps to minimize the known risk of hatm that he posed.
49. Defendant Genesis had access to and knowledge of Mt. Harris' entire cumulative file that contained documents showing Mr. Harris' history of sexual misconduct, known propensities, and history of severesexual acting out behavior.
50. Defendant Genesis took no steps to minimize the known dsk of harm Mt. Harris posed to other students above and beyond ovetsight provided to all students at Genesis.
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51. Despite actwal knowledge of Gilberto's disabilities, and the known dsk of harm from permitting him to be in close proximity to Kolby Harris, Defendants failed to protect Gilbeto from the harm to which they had exposed him.
52. Defendant Metro failed to propedy tain Ms. Smith and othet bus drivers fot a position transpotting special needs students.
53. Ms. Smith and other MNPS special education bus drivers were not ttained by Defendant Metro with regards to the propet czre and protection of childten witl autism and mental retardation.
54. Prior to the incident that is the subject matter of this lawsuit, officials with Genesis offered to ptovide ftaining to Defendant Metto's special education bus drivets on the needs of special needs students. This offer was tejected.
55. Defendants assumed and cteated a special telationship with Gilberto Lopez and created the dsk of harm he suffered by placing him at Genesis Learning Centers and on a special needs school bus with Mt. Harris due to both students' conditions and owed Gilberto an obligation to protect him against foreseeablerisks of harm such as the harm he suffeted.
56. As a direct and proximate result of Defendants' policy of assignment of special needs students and insufficient ftaining along with theit conduct and the conduct of Ms. Smith on the day of the incident, Gilberto Lopez has suffeted physical and emotional itri"ty for which he is entitled to damages fot past and future expenses, past and futute physical pain and suffedng, mental anguish, and past and future lost capacity fot the enioyment of life.
57. Since the time of the incident, Gilberto Lopez has begun engaglng 1n distutbing behavior including, but not limited to, squeezing his genitals to the point of
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bruising, asking his mother to cut off his genitals, becoming anxious, physically ill and throwing up following his interview with the Depatment of Child Services tegatding the incident, urinating in his home in inapptoptiate places,and defecating in his bedroom.
58. Prior to the incident involving Gilbet, and fot a period of several years, Defendant Metro had maintained a pattetn and ptactice of recklessly and intentionally creating dsks of harm by their policy of assigning special needs students to school buses and by disregarding reports of sexual abuse occuring on school buses and knowingly, willfully, and recklessly failed to adopt or implement policies ot training of subotdinates to prevent such depdvations.
59. In response to the incident outlined above, as well as priot incidents of sexual assaulton school buses.Defendant Meto has acted with delibetate indifference to this incident and other incidents involving potential classmembers, including, but not limited to, the following:
(a) school officials speaking out in the media asserting that a video of an earlier incident involvingJenna Staehling "do not provide corrcrete evidence" of any attack; (b) admissions by school officials in the media that Defendant Metro should have acted differendy in response to the incident involvingJenna Staehhng; (c) by failing to offer any substantive counseling of any kind to Gilberto after the incident; (d) systeman failing to report incidents of sexual assault to police as
"try required by Tennesseelaw; (e) failing to keep Gilberto's mothet, and systemaically failing to keep parents of victims, informed of any developments including whethet the
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allegedpelpetrator would be on Gilberto's school bus during this academic school year; and (f faiiing to notiS' Gilberto's teachers and counselots of the incident and to look out for changesin Gilberto's demeanor and ptovide assistance. 60. Following the filing of the initial Complaint, Defendants, by and thtough Defendants' agents,placed a school bus monitor on the school bus Gilberto ddes. 61. No notice was provide to Ms. Lopez priot to the placement of the bus monitor on Gilberto's bus. 62. In addition, aftet the filing of this lawsuit, Gilberto was assigned to a school bus route which took him on an approximately two (2) hout dde, each way, to and from school every day. 63. Shotly aftet the new school year began, in Octobet 2007, Gllberto was committed to the Cottage Progtam at Youth Villages in Memphis Tennessee and has been institutionalized at that facility from October 2007 through the present as a result of the incident that is the subject matter of this lawsuit. 64. For seven (7) yeats, including the academic yeat 2006-2007, Linda B. DePtiest, Ed.D. was a Coordinator in the Depattment of Special Education fot MNPS responsible for Moderate Intervention and Sevete Behaviotal Intervention Programs. 65. In her role as Coordinator, Dt. DePriest was persona\ and directly involved in determining the proper placement for special needs students with moderate and severe behavioral problems. 66. Prior to the incident that is the subiect matter of this lawsuit. Dr. DePriest believed there was a substantial likelihood that an incident like the one that is the subiect matter of this lawsuit would occur based on infotmation she learned ftom other employees
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of Defendants, complaints of parerits, het review of confidential student tecords, and information of which she had petsonal knowledge.
67. Pdor to the incident that is the subject matter of this lawsuit, Dr. DePriest expressed to Sharron Wright, Executive Director of Special Education for MNPS and Dt. Kaye Rackatd, Director of Speciai Education fot MNPS, het concetns fot the safety of special needs children on special needs buses and the probability of occurences similar to the one that is the subject matter of this lawsuit.
68. Prior to the incident that is the subiect m^ttet of this lawsuit. Dt. DePriest was aware of and concerned that school bus monitors were not being apptopriately assigned to protect special needs students from probable hatm.
69. When Dr. Depriest taised these concems, Ms. Wdght and Dr. Rackard responded that responsibility for assignment of monitors was the responsibiJity of the MNPS Department of Transportation and failed and tefused to account for the safety of special needs children.
70. Prior to the incident that is the subiect mattet of this lawsuit, Dt. DePdest was told by the MNPS Department of Transportation and special education route coordinator, Sandy Burton, that the responsibiJity for assignment of monitors was that of the Depattment of Special Education.
71. Burton likewise failed to adopt means recommended by Dr. DePriest to prevent ptobable hatm.
72. As a result of this confusion of responsibiJity and the failure of Defendant Metro to propedy coordifiate and otgatize perfotmance of its duties, monitors were not appropriateiy assignedin the face of known danger.
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73. Prior to the incident that is the subject matter of this lawsuit, Ms. Burton made decisions tegatding assignment of special needs students to various special needs buses and specific routes based upon mere practical concerns regatding routes and locations with no regard for the specific needs of individual students ot the possibiJity that students would be assigned to buses with age or sex inappropriate affangements such as placing one female student on a bus with 4 boys or placing arine yeat old on the same bus as a nineteerrye t old.
74. Because Burton neithet tequested nor was ptovided with special needs student's Individualized Education Ptograms (IEP) or othet information concerning behavioral issues of pupils, she failed to take into considetation the individual needs and vuLrerabilities of special needs students when determining school bus route assignments and whether certain pupils were, by virtue of age, disability, gendet, and othet characteristics r,-ulnetableto othets placed on the samebus.
75. Defendant Genesiswas aware of and had accessto recotds of Kolbv Hattis' severe sexual acting out behaviotal history and did nothing to minimize the risk of harm he posed.
76. At ali times petinent hereto, Dr. Pedro Garcia, Ms. Wright, Dr. Rackard and Ms. Burton had authority to address the policies and to institute corrective measures on Defendant Metro's behalf. Similatly, officials of Defendant Genesis had authority to address thesesafetyissues.
77. Defendants' policy and ptactice of assigning special needs students to special needs buses, while knowing of, but disregarding, safety concerns, cteated and incteased the risk that Gilbeto would be exposed to acts of violence and sexualmisconduct.
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78. Plaintiff Gilberto Lopez faced a special risk and danger that was distinguishable from a dsk that affects the public atlarge.
79. The Defendants created and conftibuted to the cteation of the danger that rendeted Gilberto more vulnerable to hatm.
80. The Defendants knew or cleadv should have known that their actions specifica\ endangeted Gilbeto Lopez.
81. The Defendants' policies and practices tegarding special needs student school bus assignments creates a constitutionally cogntzable claim giving rise to liability under42U.5.C.N1983.
82. No effort was made to take into account obvious dangers in making bus assignmentson specialneedsschool buses.
83. As a consequence, Gilberto Lopez, at nine (9) years of age,was placed on a bus with a driver who was unftained in the management of special needs children with a nineteen (19) yeat-old man who was known by the Defendants to have a history of sexual impropdety.
84. Since the incident that is the subject matter of this lawsuit occurted, other similar and similady preventable incidents of sexual assault have occutted on school buses utilized by the Defendants.
95. Defendant Metro has provided individual school bus monitors and aides to comparable disabled students in the past.
CAUSESOF ACTION DEFENDANT METRO UNDER GOVERNMENTAL TORT LIABILITYACT
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96. Defendant Metro is vicariously liable under pdnciples of common law and the TennesseeGovernmental Tot Liability Act, T.C.A. S 29-20-101,et seq. for injuries suffeted by Gilberto Lopez.
97. Ms. Smith's negligent acts and omissions as outlined above were operational in nature and not disctetionary as contemplated by T.C.A. S 29-20-205.
98. Ms. Smith failed to exercisereasonable care and proper oversight undet the circumstanceswhich was a proximate causeof Plaintiff Gilbeto Lopez's injudes.
99. Ms. Smith negligently supewised Plaintiff Gilberto Lopez and Kolby Harris causing and exacetbating Plaintiff Gilberto Lopez's injuries.
100. Defendant Metro and Ms. Smith failed to propedy report the incidents to law enforcementand proper authorities asrequired by T.C.A. S49-6-4301,S37-1-403;and $ 37-1-605.
101. Defendant Metro assumeda duty to protect Gilberto from harm and negligently failed and refused to do so.
102. Defendant Metto placed a helpless, autisd.cnine (9) yeat old child in dangetous proximity to a nineteen (19) yeat old man.
GENESIS NEGLIGENCE AND RECI{LESS CONDUCT 1.03. Defendant Genesis is liable for the iniuries suffered by Gilbert. 104. If Genesis officials had obtained and reviewed the content of Harris' cumulative file, the incident that is the subiect matter of this lawsuit would not have occurred and additional steps would have been taken by Genesis to ensure that a bus monitot was placed on the school bus. 105. Defendant Genesis had a duty to protect Gilberto from known risks of harm that extended to the school bus to which Gilberto was assigned.
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106. Defendant Genesis knew or should have known of I(olby Hanis'history of

severe sexual acting out behaviot and failed to take appropriate steps to minimize the risk of

harm Haris posed.

"107. Mote specifrcalty,Defendant Genesis acted tecklessly by permitting Haris to

be a student at Genesis without teviewing the content of his cumulative frle. Genesis was e
awa;tethat Harris had a history of sexualinappropriate behavior but was not aware of the

additional content in his cumulative file and took no steps to obtain or ensure that the

content was reviewed priot to the incident that is the subject mattet of this lawsuit.

108. As a ditect and proximate tesult of Defendant Genesis'recklessconduct,

Gilberto has suffered and will continue to suffet mental i"j".f and damages.

42 a.S.C.S.S 1983-GENERALLY
109. Gilberto Lopez's Constitutional dghts were violated as a result of the

incident by Defendants' creation of a dsk of harm that caused Gilberto iniuries.

110. The Defendants were deliberately indifferent making a deliberate and

conscious choice, to an obvious danger that resulted in depdvation of Gilberto Lopez's

Constitutional rights by:

(r) failing to ftain school employees;

&)

failing to adopt ot implement policies to prevent the sexual assaults

against Gilberto Lopez and similatly situated students ftom occurring;

G) faiiing to propetly supervise or discipline school employees; (d) petmitting Ms. Smith, an incompetent and untrained school bus

dtivet, to transpolt Gilberto Lopez;

k)

failing to train Ms. Smith to report procedures for incidents such as

those at issue in this case:

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(9

f"ili"g to assign Gilberto to a bus with a bus monitor;

(g) creating a risk of harm by assigning Gilbeto to a bus with a special

needs students known to be a risk of hatm; and

(h)

assigning Gilberto to a bus with other special needs students known

to be a risk to him and knowing he had no way of defending herself.

1,11,. Defendants created and had actwalor constructive nodce that their actions or

failure to act were substantially certain to tesult in a Constitutional deprivation, and

Defendants consciously or delibetately chose to distegard the risk of harm.

1,12. Defendants'failure to ftain Ms. Smith amounts to deliberate indifference to

the dghts of Gilbeto Lopez and other special needs students.

113. Defendants'policies were the moving force behind the Constitutional

violation Gilbeto Lopez suffered. The Defendants'failute to ftain their employees in

respect to Gilberto's audsm and the special needs he had evidences a deliberate indifference

to the Constitutional rights of Gilbeto as does Defendants' policy of assignment of students

with special needs to such buses.

174. Defendants knew that special needs students tequired specialty

ftansportation and specializedovetsight. Defendant Metro putchased specially designedand

manufactured buses to allow Defendants to accomplish this task.

115. The need to ffain speciai needs school bus ddvets is so obvious that

Defendants' failure to do so amounts to deliberate indifference to special needs students'

Constitutional rights.

1,16. As a direct causeof the Defendants' creation of the dsk of harm and failure

to adequately l:ain, adopt, or implement cettain policies and ptopedy supewise school

employees, Gilbeto Lopez suffered loss and hatm including violation of Gilberto's

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Constitutional rights, including, but not limited to, rights under the Due Process and Equal Protection Clausesof the Fourteenth Amendment to the United StatesConstitution as protectedby 42 U.S.C.S.S 1983et. seq.
42 U.S.C.SS. 1983-FATLaRE TO TRAIN
1,17. The conduct of the Defendants cteated a pervasive and offensive hostile atmosphere in violation of Gilbeto Lopez's exetcise of his dghts under the Constitution.
118. As a result of these wrongfrrl actions, Gilbeto Lopez has suffered trauma, pain and distress.
119. The Defendants are liable for the wrongfirl conduct of their employees, as the Defendants'of{icials conceived andf ot failed to createand implement a policy and practice of propedy ftaining bus petsonnel and employees to protect Giiberto Lopez.
120. Defendants ate liable for the wtongfirl conduct of the Defendant's employees, as the Defendants' officials failed to train ar;.dsuperviseits superrisors, agents and employees to avoid such pewasive and offensive hostile conduct against known, r,'ulnerableminor, special education students such as Gilberto.
121. Defendants are liable for the wrongful conduct of the School Disttict's employees, as the Defendant's of{icials permitted and condoned a policy and ptactice of not ptopetly training employeeswho were chatged with the care and custody of students with disabilities and special needs.
1,22. As a result of the Defendants' wrongfirl conduct, Gilberto Lopez suffered the hatm and damagesaverred to above.
42 U.S.C.SS. 1983-DUEPROCESS
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1,23. Gilbeto Lopez was a special needs student as de{ined by Section 504 of the Rehabilitation Act.
124. Gilberto's change in transpottation was not done pursuant to a new IEP. 1,25. The change in transportation was not provided to Ms. Lopez in writing. 1,26. Ms. Lopez was riot provided an oral ot wtitten notice of any due process rights related to this change in transportation ot the assignment of school bus monitors. 1,27. The Defendants represented to Ms. Lopez that the new transpottadon arrangement would be apptopriate and safe for Gilbeto. 128. Relying on that tepresentation, Ms. Lopez acceded to the new transportadon arrangement made by the Defendants. 129. The change materially altered the transportation provisions of Gilbeto's IEP to the detriment of Gilberto as stated heretofote. 130. Defendants, while acting undet color of state law, violated and knew ot should have known that they violated Gilberto Lopez's dghts as guatanteed by State and Fedetal Law and the State and Federal Constitution by changing transportation and thereby creating a dangetwhich causedharm to Gilberto, to wit, ttanspotting him with non-age appropriate, sexually abusive and emotionally disturbed students without adequate safety precautionsand supervision. 1,31,. The conduct of the named Defendants was based on action or inaction of the Defendants which was deliberately indifferent to and in violation of dghts guaranteed to Gilberto Lopez by law. 132. The actions of the Defendants were proximately related to the depnvation and loss of Gilbeto's Constitutional dghts as guaranteed by law.
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1,33. Gilbeto Lopez's denial of his dghts undet the Constitution of the United States,as guaranteed by iaw, were proximately related to the actions and inactions of the Defendants, by ignoring the negligent, reckless, arbtttary, and capricious conduct of the Defendants' employees, to wit, the transportation of a vulnerable, disabled student with a non-age appropriate known sexualptedatot vrithout instruction, training, or proPer supervision.
134. Defendants are liable fot the wtongful conduct of the Defendants' employees, as the responsible decision makers conceived and implemented a policy and practice of failing to train bus personnel and employees to protect Gilberto Lopez.
135. The Defendants are liable for the wtongfrrl conduct of their employees, as the decision makers failed to train and supewise their supervisors, agents, and employees to avoid such pervasive and offensive hostile conduct against known vulnetable students.
1,36. As a result of the Defendants' wrongful conduct, Plaintiff Gilbeto Lopez suffered the harm and damagesavered to above.
42 U.S.C.S. S 1953-BREACTT OF SPECTAL CaSTODTAL ARRANIGEMENT 1,37. The conduct of the named Defendants was based on action or inaction of
the Defendants that was deliberately indifferent to and in violation of the dghts guaranteed to Gilbeto Lopez by law.
138. The actions of the Defendants were proximately reiated to the deprivation and loss of Gilberto's Constitutional rights as guaranteed by law.
1,39. As a tesult of these wrongful actions, Gilberto has suffeted ttaama and disttess.
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140. The Defendants are liable for the wrongful conduct of theit employees, as the decision makers conceived and implemented a policy and practice of failing to ftain bus petsonnel and employees to protect Gilbeto Lopez.
1,41,. The Defendants ate liable for the wrongful conduct of their employees, as the decision makers for the Defendants failed to ll;ain and supewise their supervisors, agents and employees to avoid such pewasive and offensive hostile conduct against known l,'ulnerable students.
142. The Defendants ate liable fot the wtongful conduct of their employees, as the decision makets permitted and condoned a policy and ptactice of not ptopedy training said persons and of directing and instructing offrcials not to include school bus monitors in and students IEP.
143. As a result of Defendants'wrongfirl conduct, Gilbeto Lopez suffered the harm and damages avetted to above.
42 U.S.C.SS. Iq&3-WOLATTON OF TrrE FOaRTEENTTTAMENDMENT STATE CREATED DAATGER
1,44. The Defendants knew or should have known of the past inappropdate sexual conduct of Haris.
145. The Defendants, based on this knowledge should have anticipated that Harris would prey upon a r.'ulnerableminor male student if provided the opportunity.
146. The harm ultimatelv causedto Gilberto was foreseeableand direct. 147. The Defendants acted in willfirl distegatd for the safety of Gilberto. 148. Thete was a relationship between Gilberto and the Defendants in that he was a special needs student in their care and protectiofl as required by law.
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 20 of 31 PageID #: 950

149. The Defendants used their authority and capacity to create the opportunity for harm that otherwise would not have existed by changing the ftansportation for Gilbeto and failing to assurefot propet supervision of the students during transit.
150. The Defendants' actions were predicated in a failure to act in light of a known risk of harm.
1.51.. The Defendants' actions manifested a disregard of a high and excessive degree of danger, known to them ot apparerrt from a reasonable person in theit position.
1,52. The actions of the Defendants were outrageous and willfrrl or in such a negligent manner as to dse to the level of outrageousnessand wiilfulness.
42 U.S.C.SS. Iqg1-RETALTATTONFOR EXERCTSE OF CONSTTTUTTONAL AAID STATUTORY RIGI{TS
1.53. The Plaintiffs' complaints and reports tegatding Gilberto's assaultconcetned important issuesof public interest and were protected by the First Amendment to the Constitution of the United Statesand implied by the relevant federal statutes.
154. After the complaints that Gilberto was not ptopedy provided safe transportation as required by law and proximately related thereto, the agents and employees of the Defendants engaged1n^ pattern of retahatory conduct.
155. This retaliation by Defendant Metro took the form of rcassigningGilberto to a school bus for the following school year which traveled a route in excessof two houts, eachway, to and from school in violation of Tennesseelaw and to the detriment of Gilberto's mental condition.
1,56, This retaliation by Defendant Genesis took the form of excessive,impropet and trumped-up allegations against Gilberto in an effot to portray him as a neglected student with numerous school conduct violations.
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 21 of 31 PageID #: 951

157. The conduct of the Defendants was taken in retaliation of the Plaintiffs' exetcise of their rights and duties under the First Amendment to the Constitution of the United Statesand deprived the Plaintiffs of Constitutional rights as guaianteed by law.
158. As a result of this wrongful retaliation, the Plaintiffs have suffered lossesas well as humiliation and emodonal distress.
159. Defendants areltable for the wrongfiri conduct of their employees as the decision makers conceived and implemented a policy and practice of retaliating against Plaintiffs in the exerciseof their First Amendment dghts.
1.60. As a result of the Defendants' wrongful conduct, the Plaintiffs suffeted the harm and damagesaverted to above.
TITLE II OF TT{E AfuTERICAATS IVITIT DISABILITIES ACT, AATD SECTIOIV
504 OF TIIE REI:ABILITATIONACT
1,61,. The Defendants had a duty under law to provide Gilbeto Lopez a ftee and appropriate education, including appropriate anclllary services such as safe transpottation.
1,62. Gilberto suffered from a disability and mental impairment that substantially limited one or more of his majot life activities which prevented hs petformance of amaior life activity that the ^vetage person in the general population can petfotm.
163. Gilbet was to be provided appropriate transportation to and ftom Genesis. 164. Defendants changed Gilberto's ftansportation assignment without reconvening an IEP meeting. 1,65. Ms. Lopez was not provided notice of or afforded any due processdghts related to this change. 1,66. The Defendants represented to Ms. Lopez that the new transpottation would be apptopriate and safe for Gilberto without any basis for this reptesentation and cofitr^ry to the known dsk of harm ftom Harris.
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 22 of 31 PageID #: 952

167. Relyrng on Defendants' teptesentadon, Ms. Lopez accepted the change by the Defendants.
168. The change materially altered the transportation services section of Gilberto's IEP to the detdment of Gilbetto as stated heretofote by placing him with non-age appropriate students, an insufficiently trained driver and Hards.
169. At the same time, Defendant Metro provided bus monitots to other similady situated and comparably disabled students.
170. The Defendants actions proximately causeda violation of the rights guaranteed to Gilbeto under the ADA and Section 504.
171,. Gilberto was iniured as a result of these violations in a manner set out above..
20 U.S.C.S. S 1681 ('Title IX') 1.72. Gilbeno was assaultedbv Harris on the basis of Gilbetto's sex. And the incident of contact of a sexual nature was so severe,pervasive, and objectively offensive that it deprived Gilberto Lopez of accessto the educational opportunities ot benefits provided by the MNPS. 173. The Defendants had actwalknowledge of the incidents and pdor inappropriate conduct of a sexual nature by I{olby Harris. 1.74. Defendant responded with deliberately indifference to the pdor incidents of inappropriate conduct ofa sexual nature, as oudined above. 1.75. As a result of the Defendants'deliberate indifference to prior instancesand Gilberto Lopez's assault, Defendants created and allowed to continue an intimidating, hostile, offensive, and abusive school environment that violated Title IX of the Education
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 23 of 31 PageID #: 953

Amendments of 1972outlined in 20 U.S.C.S.S 1681 et. seq.and deprived Gilberto Lopez of accessto educational oppotunities or benefits provided by MNPS.
CI,\SS ACTION AILEGATIONS SEEKING INJUNCTIVE AI\D EOUITABLE RELIEF
1,76. In addition to the Plaintiffs'individual claims, this action is brought as a ClassAction seeking certain equitable telief from Defendant Metto andmay ptopedy be maintained as such pursuant to the provisions of Rule 23 of the FBoBn-ql Rures oF CIVL PRocgouru,.
177. A ClassAction is superiot to other available methods for the fa:r and effective adiudication of this claim and is sought to recti$r the consistent pattern of deliberate indifference to the needs of special needs students, Defendant has demonstrated tlrat, if not immediately addressedthis indifference, will result in rrepanble harm to members of the class.
CLASS DEFINITION 178. Plaintiffs bdng this action on their own behalf and as a ClassAction under the provisions of Rules 23(a),23@)Q) and 23@)(3)of the FnoBn-q'rRures oF CIVL PRoCEDUREon behalf of all members of a Class of Plaintiffs defrned as follows: All special needs students, suffedng from any setious physical limitation ot mental health condition, and the custodial and biological parents of any special needs student, presently attending a Metropolitan Nashville Public Schools system ot otherwise a student ^t any school with whom The Board of Education for the Metropolitan Nashville Public Schools contracts to provide an education and who are transported on any school bus. (hereinafter the "Class').
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 24 of 31 PageID #: 954

179. Ptaintiffs reserve the right to modi4' the Class definition based on the results

of discovery.

NUMEROSITY

180. Plaintiffs do not know the exact number of Classmembets, becausethis

information is within the control of Defendants, but Plaintiffs believe, on good faith

information and belief, the number of Classmembers exceeds^fi ^ggreg te of one hundred

(100).

181. The Classmembers are sufficiently numetous, so that joindet of all Class

membets is impracticable.

182. The precise number of members in the Classand their identities and addtess

may be determined from Defendant Metro's records.

183. The Classis teadily ascertainable.

1,84. The likelihood of individual Classmembers prosecuting separateclaims is

remote, becausethe damagessuffeted by each individual Classmemb er may be relatively

small.

EXISTENCE OF COMMON FACTS AND LAW.

185. There are well-defined questions of law and fact common to the membets of

the Classwhich predominate over any questions affecting only individual members,

including legal and facttalissues telating to liability and damages,which include, but are not

limited to:

(") Defendant Metro's legal responsibility for reporting instances of

violence involving Classmembers to the appropriate authodties;

&)

Defendant Metro's failure to propedy :r:atnofftcials and employees

regarding the needs and tequrrements of the Classmembers asrequited by law;

Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 25 of 31 PageID #: 955

G) Defendant Metro's and MNPS' failure to inform the parents and custodial parents of instances of physical violence and sexual assaultor battery involving

special needs students and Defendant Metto's obligations to do so under state and federal

law;

(d) Defendant Metro's failure to propet\ monitor special needs students

on school buses:

G)

Such othet legal and factual issues^s may develop and al|se during

the coutse of discovery in this casemoving fotward.;

(9

Defendant Metro's systematic tefusal to propedy report instances of

sexualabuse of classmembet asrequired by Tennesseelaw; and

G) any student's IEP.

Defendant Metro's policy of tefusing to include monitots as patt of

186. Since the incident that is the subiect matter of this lawsuit, at least two other

similar incidents ate known to have occured which.like this incident. could have been

avoided had school bus monitors been assignedto the special education school buses.

1,87. The prosecution of separateactions by individual members of the Class

would createa tisk of inconsistent orvatying adjudications establishing incompatible

standards of conduct fot the Defendant.
TYPICALITY

188. The Plaintiffs'claims areqp.rc I of the claims of the Classmembers they seek

to represent. Plaintiffs share those claims in common with the Classmembers.

ADE QAACY OF REPRESENTATION
189. Plaintiffs will fairiy and adequatelyprotect the interests of the othet membets

of the Class.

Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 26 of 31 PageID #: 956

190. Plaintiffs are committed to and intend to prosecute this action vigorously. 797. The Plaintiffs have no interests that areadverse or antagonisdc to those of othet members of the Class. 192. Plaintiffs have retained counsel who are experienced in litigation such as this tIPC. 1.93. Plaintiffs envision no unusual diffrculty in the managemeflt and maintenance of this ClassActiort as ^ ClassAction.
PRED OMINANCE AND SUPERIORITV
194. A ClassAction is supedor to othet methods for the falr and effective adjudication of this controversy. Treatment as a ClassAction will petmit alatge numbet of similady situated pefsons to adjudicate their common claims in a single forum simultaneously, effectively, and without duplication of effort and expense that numerous individual actions would engender.
195. This suit may also be maintained as a ClassAction becausequestions of law and factcommon to the Classpredominate over the questions affecting only individual members of the Classand a ClassAction is supetiot to othet available meafis for the fatt and effective adjudication of this dispute. Damages suffeted by each individual Classmember may be relatively small, especiallygiven the burden and expense of individual prosecution of the complex and extensive litigation necessitatedby the Defendants' conduct. Futthermore, it would be virtually impossible for the Classmembers, on an individual basis,to obtain effective redressto the wrongs done to them. Moreovet, even if Classmembers themselves could afford such individual litigation, the Coutt system could no! individual litigation presents a potential for inconsistent and conttadictory judgments. Individuahzed litigation increasesthe delay and expenseto all parties in court systemspresented by the legal issue of
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 27 of 31 PageID #: 957

the case. By contrast, the ClassAction device presents fat fewer management difficulties, and provides the benefits of single adjudication, economies of scale,and comprehensive supervision by a single court.
1,96. This suit may also be maintained as a ClassAction becausePlaintiffs and the Class seek declaratory ^nO/ onnjunctive relief, and all of the above factors of numetosity, questions of factand law, typicality and adequacy, arepresent. Moteover, Defendants have acted on gounds genera\ applicabie to Plaintiffs and the Class as a whole, thereby making declaratory andf or injunctive telief proper.

PRAYER FOR RELIEF

S7HEREFORE. Plaintiffs demand:

a.

That process be issued requiring the Defendants to answer this Foutth

Amended Complaint within the time required by law;

b.

That the Court elrter an order determining that the actions involving claims

colnmon to all Classmembers, may be maintained as a Classaction as contemplated

by Rule 23 of the Fsoen{r Rures oF CIVL PRoceounn;

The Plaintiffs be awarded such damagesaswill fully compensate Plaintiffs for all i"i..ry causedby the Defendants' actions in violation of Tennesseecorrlmon law, Tennesseestatute, and Fedetallaw;

d.

That the Court enter an Ordet directing Defendants, uflder the supewision

of the Court, to:

(1) train all employees of any school within the MNPS or with whom

Defendant Metto contracts to provide educational sefi/ices,regarding the

Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 28 of 31 PageID #: 958

specific needs of, requirements fot and Defendants'legal obligations

towatds, all Class members;

(2) provide safe and securemonitodng of special needs students both while

at school and on any school bus to prevent instancesof sexualot other

physical abuse from occurdng;

(3) require Defendants to immediately noti$' the patents of any special needs

students via telephone, e-mail, and in wdting following any instance of sexual

ot othet physical abuse involving any special needs student;

(4) require Defendants to comply with T.C.A' S49-6-4301,S37-1-403;and $ 37-1-605 regarding repoting requirements for instances of violence or abuse

involving any special needs students;

(5) adopt and implement specific policies to prevent instances of

violence ot abuseinvolving any specialneeds students; and

(6) prohibit Defendant Metro from system^t1clly refusing to include

school bus monitors in student IEPs.

e.

That Plaintiffs be awarded attotneys' fees authorized under 42 U'S.C.S. S

1988 fot Defendants'violationof 42 U.S.C.S.\ 1983et. se![.i

f.

That Plaintiffs and the Classbe awarded such othet, additional ot general

relief as is considered necessaryand ptoper as the intetests of justice may tequire;

g.

That Plaintiffs be awarded punitive damagesfrom Defendant Genesis for the

reckless conduct of Defendant Genesis in bdngrng about the hatm suffered by

Gilbeto in an amount no to exceed ten (10) times the amount of compensatory

damages as detetmined by a far ar.d impartial 1ury; and

Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 29 of 31 PageID #: 959

For a jury to heat and tendet judgment on those causesof action so triable. Respectfully submitted, BLACKBURN & MCCUNE, PLLC /s/ RobertT. Homlar W. Gary Blackburn (#3484) Robert T. Homlar (#25463) 1,07Lez Avenue Nashville,Tennessee37210. Telephone:(61,52) 54-7770 Facsimile:(615)251-,1,385 Attorneys for Plaintiffs
Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 30 of 31 PageID #: 960

CERTIFICATE OF SERVICE

I hereby certi!' rhat a true and exact copy of the fotegoing FOURTH AMENDED COMPLAINT has been served via the Court's electtonic f,ling system to the following:

R. DaIe Bay, Esq. Lewis, I(ing, Krieg & Waldrop, P.C. 201 Fourth Avenue North, Suite 1500 Nashville, Tennessee37219

Thomas F. Mink,II, Esq. Keith \)7. Blair, Esq. Taylor, Pigue, Marchetti & Mink, PLLC
2908 Poston Avenue Nashville, Tennessee37203-13. 1.2

Francis H. Young, Esq. James\W.J. Farat, Esq. Depattment of Law
Metropolitan Govetnment of Nashville and Davidson County
P.O. Box 1,96300
Nashville. Tennessee3721,9

Beniamin M. Rose,Esq.
JamesI( Simms,IV, Esq. Cotnelius & Collins, LLP
511 Union Street,Suite 1500 Nashville. Tennessee3721.9-0695

On this, the 30th day of 4pd,2008.

/s/ Robert T. Homlar Robet T. Homlar

Case 3:07-cv-00799 Document 98 Filed 06/27/08 Page 31 of 31 PageID #: 961

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

KIMBERLY LOPEZ, as guardian, next friend )

and parent of GILBERT LOPEZ a minor,

)

individually and as a member of a class

)

of similarly situated individuals,

)

)

Plaintiffs,

)

)

v.

) No.

)

THE BOARD OF EDUCATION FOR

)

THE METROPOLITAN NASHVILLE

)

PUBLIC SCHOOLS,

)

)

Defendant.

)

NOTICE OF REMOVAL

Comes now defendant, th e Metropolitan Government of Nashville and Davidson

County,1 and files this notice of removal pursuant to 28 U.S.C. § 1441 bas

ed on the

following grounds:

1. This suit originated in the Circuit Court ofDavidson County, Tennessee. The

Metropolitan Government ofNashville and Davidson County was served with a summons

and a copy ofthe Complaint on July 30,2007.

2. The Complaint contains a cause of action arising under the Constit ution and

laws of the United States because in paragraphs 32-39, plaintiffs specifically assert a claim

under 42 U.S.C. § 1983 for alleged violations of plaintiffs' constitutional rights.

1 The Board of Education for the Metropolitan Nashville Public Schools is not an entity capable of being sued. Haines v. Metropolitan Government 32 F. Supp. 2d 991, 994 (M.D. Tenn. 1998) (Echols, J.). The Metropolitan Government will refer to itself as the proper defendant, in anticipation of being fonnally substituted as such in the near future.
R:\L\L\L-l~-e6~oftMn.Q.Q7~idoc Document 1 Filed 08/02107 Page 1 of 3 PageiD #: 46

3. Copies of the all pleadings filed in this matter and notices of removal to the

clerk ofthe Davidson County Circuit Court and to plaintiffs are attached.

4. The United States District Court for the Middle District ofTen nessee has

jurisdiction over this cause under 28 U.S.C. § 1331, which confers original juri sdiction on

district courts ofall civil actions arising under the constitution, laws, or treaties ofthe United

States.

5. Although plaintiffs have included a non-removable state law cause of action in

the Complaint (.,-r .,-r 25 - 31), this cause ofaction is separate and independent from the federal

causes of action and it does not affect defendant's right to removal pursuant to 28 U.S.C. §

1441.

6. Title 28 U.S.C. § 1441(c) provides

that "[w]henever a separat e and

independent claim or cause of action within the jurisdiction conferred by§ 1331 of this Title

is joined with one or more otherwise non-re movable claims or causes of action, the entire

case may be removed and the di strict court may determine a 11 issues therein, or, in its

discretion, may remand all matters in which state law predominates."

Based upon the foregoing, this case is properly removed to the United States District

Court for the Middle District of Tennessee pursuant to 28 U.S.C. § 1441.

R:\L\L\L-l~e1~Q.L-~Q.7~ Document 1 Filed 08/02107 Page 2 of 3 PageiD #: 47 2

METROPOLl NASHVIL
s/ Francis James Assistant P.O. Nashville, (615)

THE DEPARTMENT OF LAW OF THE TAN GOVERNMENT OF
LE AND DAVIDSON COUNTY Sue B. Cain# 9380, Deputy Director ofLaw
Francis H. Young H. Young, #16554 W. J. Farrar, #22782 Metropolitan Attorneys
Box 196300 Tennessee 37219-6300
862-6341

CERTIFICATE OF SERVICE
I hereby certify that a tr ue and accurate copy ofth e forgoing has been s erved electronically and mailed via U.S. mail toW. Gary Blackburn and Robert T. Homlar, 101 Lea Avenue, Nashville, TN 37210 on this the 2nd day of August, 2007.

Francis

s/ Francis H. Young H. Young

R:\L\L\L-l~e1~Q.L-~Q.7~ Document 1 Filed 08/02107 Page 3 of 3 PageiD #: 48 3

CHANCERY COURT SUMMONS

NASHVILLE. TENNESSEE

STATE OF TENNESSEE DAVIDSON COUNTY 20TH JUDICIAL DISTRICT

I:8J First
0 Alias
D Pluries

KIMBERLY LOPEZ, as guardian, next friend and parent of GILBERT LOPEZ, a minor, individually and as a member of a

CIVIL ACTION DOCKET NO.

class of similarly situated individuals,

Plaintiffs

Vs.

The Board of Education for The Metropolitan Public Schools

Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Souare 204 Suite 108

Nashville, Tennessee 37201

Defendant

Method of Service:
D Davidson County Sheriff D Out of County Sheriff D Secretary of State
D Certified Mail
[8] Personal Service
D Commissioner of Insurance

To the above named Defendant:

You are summoned to appear and defend a civil action filed against you in Chancery Court, 1 Public Square, Suite 308, Nashville, TN 37201, and your defense must be made within thirty (30) days from the date this summons is served upon you. You are further directed to file your defense with the Clerk of the Court and send a copy to the Plaintiff's attorney at the address listed below.

In case of your failure to defend this action by the above date, judgment by default will be rendered against you for the

relief demanded in the complaint.

CRISTI SCOTT

ISSUED:

Chancery Court Clerk & Master Davidson County, Tennessee

By
Deputy Clerk &Master

ATTORNEY FOR PLAINTIFF or
PLAINTIFF'S ADDRESS

BLACKBURN & McCUNE, PLLC W. Ga Blackburn, Es . #3484 and Robert T. Homlar, Es
101 Lea Avenue
Address
Nashville, Tennessee 37210

TO THE SHERIFF:

Please execute this summons and make your return hereon as provided by law.

Received this summons for service this _ _ _ _ day of _ _ _ _ _ _, 20__.

~~ ADA Coordinator, Cristi Scott (862-571 0)

SHERIFF

Case 3:07-cv-00799 Document 1-1 Fried 08/02707 Page 1 of 45 PageiD #: 1

RETURN ON PERSONAL SERVICE OF SUMMONS

_ _ _ _ _ .__

__, failed to serve this summons within 30 days after its issuance because

RETURN ON SERVICE OF SUMMONS BY MAIL

I hereby certify and return, that on the - - - - - day of

t 20

I sent, postage prepaid by

registered return receipt mail or certified return receipt mail, a certified copy of the summons and a copy of the complaint in Docket No.

------------------- to the defendant,

On the

day of

------------------------__..::..;.2_0_____ , I received the return receipt for said registered or certified mail, which had been signed

by - - - - - - - - - - - - on the

dayof -------------------~·=20~--~ Said return

receipt is attached to this original summons and both documents are being sent herewith to the Chancery Court Clerk for filing.

SWORN TO AND SUBSCRIBED BEFORE ME ON THIS DAY O F - - - - - - - - - ' 20_ _.
_ _ _NOTARY PUBLIC or _ _ _DEPUTY CLERK MY COMMISSION EXPIRES: - - - - - - - - -

PLAINTIFF, PLAINTIFF'S ATTORNEY OR OTHER PERSON AUTHORIZED BY STATUTE TO SERVE PROCESS

NOTICE
TO THE DEFENDANT(S):
Tennessee law provides a four thousand dollar ($4,000.00) debtor's equity interest personal property exemption from execution or seizure to satisfy a judgment. If a judgment should be entered against you in this action and you wish to claim property as exempt, you must file a written list, under oath, of the items you wish to claim as exempt with the clerk of the court. The list may be filed at any time and may be changed by you thereafter as necessary; however, unless it is filed before the judgment becomes final, it will not be effective as to any execution or garnishment issued prior to the filing of the list. Certain items are automatically exempt by law and do not need to be listed; these include items of necessary wearing apparel (clothing) for yourself and your family and trunks or other receptacles necessary to contain such apparel, family portraits, the family Bible, and school books. Should any of these items be seized, you would have the right to recover them. If you do not understand your exemption right or how to exercise it, you may wish to seek the counsel of a lawyer.

ATTACH RETURN RECEIPT
HERE (IF APPLICABLE)

STATE OF TENNESSEE COUNTY OF DAVIDSON
(To be completed only if copy certification required.)

I, Cristi Scott, Clerk of the Chancery Court in the State and County aforesaid, do hereby certify this to be a true and correct copy of the original summons issued in this case.
CRISTI SCOTT, DEPUTY CLERK & MASTER
By: - - - - - - - - - - - - - - - D . C . & M .

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 2 of 45 PageiD #: 2

CHANCERY COURT SUMMONS

NASHVILLE. TENNESSEE

STATE OF TENNESSEE DAVIDSON COUNTY 20TH JUDICIAL DISTRICT

[8J First
D AJias D Pluries

Kl MBERLY LOPEZ, as guardian, next friend and parent of

GILBERT LOPEZ, a minor, individually and as a member of a

class of similarly situated individuals,

Plaintiffs

Vs.

The Board of Education for The Metropolitan Public Schools

Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Souare 204 Suite 108

Nashville, Tennessee 37201

Defendant

CIVILACTION 07•//A{/.-
DOCKET NO. _ _ (.// /·
Method of Service:
D Davidson County Sheriff D Out of County Sheriff D Secretary of State D Certified Mail
~ Personal Service
D Commissioner of Insurance

To the above named Defendant:
You are summoned to appear and defend a civil action filed against you in Chancery Court, 1 Public Square, Suite 308, Nashville, TN 37201, and your defense must be made within thirty (30) days from the date this summons is served upon you. You are further directed to file your defense with the Clerk of the Court and send a copy to the Plaintiffs attorney at the address listed below.
In case of your failure to defend this action by the above date, judgment by default will be rendered against you for the
7~30· l relief demanded in the complaint. 0
ISSUED:

B

ATTORNEY FOR PLAINTIFF or
PLAINTIFF'S ADDRESS

BLACKBURN & McCUNE, PLLC W. Gary Blackburn, Esq. (#3484) and Robert T. Homlar, Esq. (#25463)
101 Lea Avenue
Address
Nashville, Tennessee 37210

TO THE SHERIFF:

Please execute this summons and make your return hereon as provided by law.

CRISTI SCOTT
Clerk & Master

Received this summons for service this _ _ _ _ day of _ _ _ _ _ _, 20__.

~~ ADA Coordinator, Cristi Scott (862-571 0)

SHERIFF

Case 3:07-cv-00799 Document 1-1 F1led 08702707 Page 3 of 45 PageiD # : 3

RETURN ON PERSONAL SERVICE OF SUMMONS I hereby certify and return that on the _ _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, 20___, 1:

....__ _ _ _ ____.! served this summons and complaint/petition on

in the following manner:

'---------J failed to serve this summons within 30 days after its issuance because

Sheriff/Process Server

RETURN ON SERVICE OF SUMMONS BY MAIL

I hereby certify and return, that on the - - - - - day of

120

I sent, postage prepaid by

registered return receipt mail or certified return receipt mail, a certified copy of the summons and a copy of the complaint in Docket No.

to the defendant,

On the

day of

_ _ _ _ _ _ _ _ _ _ _ _ _ _2__ 0 _ _ , I received the return receipt for said registered or certified mail, which had been signed

by

on the

dayof --------------~·2_0~-~ Said return

receipt is attached to this original summons and both documents are being sent herewith to the Chancery Court Clerk for filing.

SWORN TO AND SUBSCRIBED BEFORE ME ON THIS ____ DAY OF _ _ _ _ _ _ _ _ _, 20_ _.
_ _ _NOTARY PUBLIC or _ _ _DEPUTY CLERK MY COMMISSION EXPIRES:

PLAINTIFF, PLAINTIFF'S ATTORNEY OR OTHER PERSON AUTHORIZED BY STATUTE TO SERVE PROCESS

NOTICE
TO THE DEFENDANT(S):
Tennessee law provides a four thousand dollar ($4,000.00) debtor's equity interest personal property exemption from execution or seizure to satisfy a judgment. If a judgment should be entered against you in this action and you wish to claim property as exempt, you must file a written list, under oath, of the items you wish to claim as exempt with the clerk of the court. The list may be filed at any time and may be changed by you thereafter as necessary; however, unless it is filed before the judgment becomes final, it will not be effective as to any execution or garnishment issued prior to the filing of the list. Certain items are automatically exempt by law and do not need to be listed; these include items of necessary wearing apparel (clothing) for yourself and your family and trunks or other receptacles necessary to contain such apparel, family portraits, the family Bible, and school books. Should any of these items be seized, you would have the right to recover them. If you do not understand your exemption right or how to exercise it, you may wish to seek the counsel of a lawyer.

ATTACH RETURN RECEIPT
HERE (IF APPLICABLE)

STATE OF TENNESSEE COUNTY OF DAVIDSON
(To be completed only if copy certification required.)

I, Cristi Scott, Clerk of the Chancery Court in the State and County aforesaid, do hereby certify this to be a true and correct copy of the original summons issued in this case.
CRISTI SCOTT, DEPUTY CLERK & MASTER
By: ________________D.C.&M.

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 4 of 45 PageiD #: 4

IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE

KIMBERLY LOPEZ, as guardian,

)

next friend and parent of GILBERT

)

LOPEZ a minor, individually and as a )

member of a class of similarly situated )

individuals,

)

)

Plaintiffs,

)

)

v.

)

)

)

THE BOARD OF EDUCATION FOR )

THE METROPOLITAN NASHVILLE )

PUBLIC SCHOOLS,

)

)

Defendant.

)

DOCKET NO. JURY TRIAL DEMANDED COMPLAINT--- CLASS ACTION

COMPLAINT

Plaintiff Kimberly Lopez, as guardian, next friend and parent of Gilbert Lopez,

(hereinafter, collectively, ''Plaintiffs"), for their cause of action against Defendant The Board

of Education for the Metropolitan Nashville Public Schools state as follows:

PARTIES AND VENUE

1. Plaintiff Kimberley Lopez is the natural mother of Gilbert Lopez, a special

needs student suffering from autism and mild mental retardation and attending school at

Genesis Learning Center in Nashville, Tennessee (hereafter "Genesis"). Genesis is a private

school facility with which the Defendant contracts to provide an appropriate educational

setting to special needs students that Defendant deems cannot be properly cared for in a

normal public school environment. Gilbert was nine (9) years-old at the time of the

incidents described herein. The Board of Education provides transportation to Genesis.

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2. Defendant The Board of Education for the Metropolitan Nashville Public

Schools (hereinafter "BOE"), is a political entity responsible for oversight, rule making,

compliance with state and Federal law, and control of the MNPS, which the BOE oversees.

3. The acts, errors and omissions complained of herein were committed within

Davidson County, Tennessee, and as such, this Court has proper venue and jurisdiction over

the matter under the laws of Tennessee.

ALLEGATIONS OF FACT

4.

For the academic year 2006-2007, Gilbert Lopez was a student at Genesis

Learning Centers, a school providing services to the MNPS. He was transported to and

from the school facility in a public school bus provided by MNPS. Genesis is a school to

which the Defendant assigns children with behavioral problems.

5.

Gilbert Lopez, due to his condition, was bullied and preyed upon by other

students on the school bus, who encouraged little Gilbert to "throw" gang hand signs and

obscene gestures and placed stolen property in his pocket as a joke.

6.

In April 2007, Kimberly Lopez contacted MNPS and requested a monitor on

the school bus to ensure that her son and the other students were appropriately supervised.

7. Kimberly Lopez was informed by the Special Education Department of

MNPS that arranging for monitoring on school buses was the responsibility of the

transportation department of MNPS.

8. When Kimberly Lopez contacted the transportation department of MNPS,

she was told that arranging for monitoring on school buses was the responsibility of the

Special Education Department of MNPS.

9.

No monitor was ever assigned to Gilbert Lopez's bus despite repeated

efforts by Kimberly Lopez.

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10. As a result of the continued abuse, Ms. Lopez then asked that her son be moved from the regular school bus to a smaller school bus designated for special needs students.
11. On the special needs school bus, instances of bullying against Gilbert Lopez continued.
12. Less than one week after being transferred, on May 7, 2007, Gilbert Lopez was sexually assaulted, and forced to perform oral sex on a nineteen (19) year old male, while being transported on the special needs school bus (hereinafter referred to as the "incident").
13. The incident was recorded on a MNPS school bus video camera. 14. Kimberly Lopez was not notified of the attack upon her child by school officials until a week after the incident. 15. When Ms. Lopez contacted the school about the incident, she was told by school official Melissa Adams that Mrs. Adams knew of the incident but was not able to discuss the matter with Lopez. 16. The incidents occurred within feet of the school bus driver (hereinafter the "Driver"), an employee of the Defendant, as the Driver operated the bus within the scope of the Driver's employment. Only four other students were riding the bus around the time of the incident. 17. The Driver was capable of observing all children on the school bus during the incident as the Driver drove and had a duty to do so. Because Gilbert Lopez suffers from autism, he is defenseless and at special risk for harm. The Defendant had a duty to anticipate harm to Gilbert. 18. The Defendant, by and through employees of Defendant knew or should have known of the risk of harm to Gilbert Lopez given the prior instances of abuse.
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19. Plaintiff believes and therefore avers that the perpetrator in this attack had a history of wrongful behavior.
20. Despite actual knowledge of Gilbert's disabilities, and the known risk of harm from placing him in close proximity to other students, particularly a nineteen (19) year old man, Defendant failed to protect Gilbert from harm to which it had exposed him.
21. The Defendant failed to train the Driver for a position transporting special needs students. The Driver was not trained by Defendant with regards to the care and protection of children with autism and mental retardation.
22. The Defendant assumed and created a special relationship with Gilbert Lopez by placing him at Genesis Learning Centers and on a special needs school bus due to his condition and owed Gilbert an obligation to protect him against foreseeable risks of harm such as he suffered.
23. As a direct and proximate result of Defendant's conduct and the conduct of the Driver on the day of the incident, Gilbert Lopez has suffered physical and emotional injury for which he is entitled to damages for past and future expenses, past and future physical pain and suffering, mental anguish, and past and future lost capacity for the enjoyment of life.
24. Since the time of the incident, Gilbert Lopez has begun engagmg m disturbing behavior including, but not limited to, squeezing his genitals to the point of causing bruising, asking his mother to cut off his genitals, becoming anxious and physically ill and throwing up following his interview with the Department of Child Services regarding the incident, urinating in his home in inappropriate places, and defecating in his bedroom.
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CAUSES OF ACTION GOVERNMENTAL TORT LIABILTYACT 25. Defendant is vicariously liable under principles of common law and the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. for injury suffered by Gilbert Lopez. 26. The Driver's negligent acts and omissions as outlined above were operational in nature and not discretionary as contemplated by T.C.A. § 29-20-205. 27. Driver failed to exercise reasonable care and proper oversight under the circumstances which was a proximate cause of Plaintiff Gilbert Lopez's injuries. 28. Driver negligently supervised Plaintiff Gilbert Lopez and her attacker causing and exacerbating Plaintiff Gilbert Lopez's injuries. 29. Defendant, and Driver, failed to properly report the incidents to law enforcement and proper authorities as required by T.C.A. § 49-6-4301, § 37-1-403; and§ 371-605. 30. Defendant assumed a duty to protect Gilbert from harm and negligently failed and refused to do so. 31. Defendant placed a helpless, autistic nine (9) year old child in dangerous proximity to a nineteen (19) year old man.
42 u.s.c.s. § 1983
32. Gilbert Lopez's Constitutional rights were violated as a result of the incident. 33. The Defendant was deliberately indifferent, making a deliberate and conscious choice, to an obvious danger that resulted in deprivation of Gilbert Lopez's Constitutional rights by:
(a) failing to train school employees and Driver;
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(b) failing to adopt or implement policies to prevent the sexual assaults against Gilbert Lopez and similarly situated students from occurring; (c) failing to properly supervise or discipline employee Driver and school employees; (d) permitting Driver, an incompetent and untrained school bus driver, to transport Gilbert Lopez; and (e) failing to train Driver as to reporting procedures for incidents such as those at issue in this case. 34. Defendant had actual or constructive notice that their actions or failure to act was substantially certain to result in a Constitutional deprivation, and Defendant consciously or deliberately chose to disregard the risk of harm. 35. Defendant's failure to train Driver amounts to deliberate indifference to the rights of Gilbert Lopez and other special needs students. 36. Defendant's policies were the moving force behind the constitutional violation Gilbert Lopez suffered. The Defendant's failure to train its employees, in particular Driver, in respect to Gilbert's autism and the special needs he had, evidences a deliberate indifference to the Constitutional rights of Gilbert. 37. Defendant knew that special needs students required specialty transportation, and specialized oversight. Defendant purchased specially designed and manufactured buses, to allow Defendant to accomplish this task. 38. The need to train special needs school bus drivers is so obvious that Defendant's failure to do so amounts to deliberate indifference to special needs students' Constitutional rights.
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39. As a direct cause of the Defendant' failure to adequately train, adopt or implement certain policies, and properly supervise school employees and Driver, Gilbert Lopez suffered loss and hann including violation of Gilbert's Constitutional rights, including, but not limited to, rights under the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution as protected by 42 U.S.C.S. § 1983 et. seq.
CLASS ACTION SEEKING INJUNCTIVE AND EQUITABLE RELIEF 40. In addition to the Plaintiffs' individual claims, this action is brought as a
Class Action seeking certain equitable relief from Defendant and may properly be so maintained pursuant to the provisions of Rule 23 of the TENNESSEE RULES OF CIVIL PROCEDURE.
41. A Class Action is superior to other available methods for the fair and effective adjudication of this claim and is sought to rectify the consistent pattern of deliberate indifference to the needs of special needs students Defendant has demonstrated that, if not immediately addressed, will result in irreparable harm to members of the class.
CLASS DEFINITION 42. Plaintiffs bring this action on their own behalf and as a Class Action under the provisions of Rules 23.01 and 23.02 of the TENNESSEE RULES OF CIVIL PROCEDURE on behalf of all members of a Class of Plaintiffs defined as follows: All special needs students, suffering from any serious physical limitation or mental health condition, and the custodial and biological parents of any special needs student, presently attending a Metropolitan Nashville Public Schools system or otherwise a student at any school with whom The Board of Education for the Metropolitan Nashville Public Schools contracts to provide an education. (hereinafter the "Class").
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43. Plaintiffs reserve the right to modify the Class definition based on the results of discovery.
NUMEROSITY 44. Plaintiffs do not know the exact number of Class members, because this information is within the control of Defendant, but Plaintiffs believe, on good faith information and belief, the number of Class members exceeds an aggregate of one hundred (100). 45. The Class members are sufficiently numerous, so that joinder of all Class members is impracticable. 46. The precise number of members in the Class and their identities and address may be determined from Defendant's records. 47. The Class is readily ascertainable. 48. The likelihood of individual Class members prosecuting separate claims is remote because the damages suffered by each individual Class member may be relatively small.
EXISTENCE OF COMMONFACTS AND LAW: 49. There are well-defined questions of law and fact common to the members of the Class which predominate over any questions affecting only individual members, including legal and factual issues relating to liability and damages, which include, but are not limited to:
A. Defendant's legal responsibility for reporting instances of violence involving Class members to the appropriate authorities.
B. Defendant's failure to properly train MNPS officials and employees regarding the needs and requirements of the Class members as required by law.
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C. Defendant's and MNPS' failure to inform the parents and custodial parents of instances of physical violence and sexual assault or battery involving special needs students and Defendant's obligations to do so under state and federal law.
D. Defendant's failure to properly monitor special needs students on school buses.
E. Such other legal and factual issues as may develop and arise during the course of discovery in this case moving forward.
50. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications, establishing incompatible standards of conduct for the Defendant.
TYPICALITY 51. The Plaintiffs' claims are typical of the claims of the Class members they seek to represent. Plaintiffs share those claims in common with the Class members.
ADEQUACY OF REPRESENTATION 52. Plaintiffs will fairly and adequately protect the interests of the other members of the Class. 53. Plaintiffs are committed to and intend to prosecute this action vigorously. 54. The Plaintiffs have no interests that are adverse or antagonistic to those of other members of the Class. 55. Plaintiffs have retained counsel who are experienced in litigation such as this type. 56. Plaintiffs envision no unusual difficulty in the management and maintenance ·of this Class Action as a Class Action.
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PREDOMINANCEAND SUPERIORITY:
57. A Class Action is superior to other methods for the fair and effective adjudication of this controversy. Treatment as a Class Action will permit a large number of similarly situated persons to adjudicate their common claims in a single forum simultaneously, effectively, and without duplication of effort and expense that numerous individual actions would engender.
58. Tills suit may also be maintained as a Class Action because questions of law and fact common to the Class predominate over the questions affecting only individual members of the Class and a Class Action is superior to other available means for the fair and effective adjudication of this dispute. Damages suffered by each individual Class member may be relatively small, especially given the burden and expense of individual prosecution of the complex and extensive litigation necessitated by the Defendant's conduct. Furthermore, it would be virtually impossible for the Class members, on an individual basis, to obtain effective redress to the wrongs done to them. Moreover, even if Class members themselves could afford such individual litigation, the Court system could not; individual litigation presents a potential for inconsistent and contradictory judgments. Individualized litigation increases the delay and expense to all parties in court systems presented by the legal issue of the case. By contrast, the Class Action device presents far fewer management difficulties, and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court.
59. Tills suit may also be maintained as a Class Action because Plaintiffs and the Class seek declaratory and/or injunctive relief, and all of the above factors of numerosity, questions of fact and law, typicality and adequacy, are present. Moreover, Defendant has
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acted on grounds generally applicable to Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand:
a. That process be issued requiring the Defendant to answer this Complaint within the time required by law;
b. That the Court enter an order determining that the actions involving claims common to all Class members, may be maintained as a Class action as contemplated by Rule 23.03 (1) of the TENNESSEE RULES OF CIVIL PROCEDURE.
c. The Plaintiffs be awarded such damages as will fully compensate Plaintiffs for all injury caused by the Defendant's actions in violation of Tennessee common law, Tennessee statute and Federal law;
d. That the Court enter an Order directing Defendant, under the supervision of the Court, to:
(1) train all employees of any school within the MNPS or with whom Defendant contracts to provide educational services, regarding the specific needs of, requirements for and Defendant's legal obligations towards, all Class members; (2) provide safe and secure monitoring of special needs students both while at school and on any school bus to prevent instances of sexual or other physical abuse from occurring;
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(3) require Defendant to immediately notify the parents of any special needs

students via telephone, e-mail and in writing following any instance of sexual

or other physical abuse involving any special needs student;

(4) require Defendant to comply with T.C.A. § 49-6-4301, § 37-1-403; and§

37-1-605 regarding reporting requirements for instances of violence or abuse

involving any special needs students; and

(5) adopt and implement specific policies to prevent instances of

violence or abuse involving any special needs students.

e.

That Plaintiffs be awarded attorneys' fees authorized under 42 U .S.C.S. §

1988 for Defendant's violation of 42 U.S.C.S. § 1983 et. seq.

f.

That Plaintiffs and the Class be awarded such other, additional or general

relief as is considered necessary and proper as the interests of justice may require;

and

g.

For a jury to hear and render judgment on those causes of action so triable.

Respectfully submitted,

. Gary Blackburn (#3484) _.RobertT. Homlar (#25463)
101 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385 Attorneys for Plaintiffs
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IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNE$E~

AT NASHVILLE

~; ~

s

KIMBERLY LOPEZ, as guardian,

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next friend and parent of

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GILBERT LOPEZ a minor, individually )

and as a member of a class of similarly )

situated individuals,

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Plaintiffs,
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DOCKET No.OfJ - J b Cf;'7 -J

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JURY TRIAL DEMANDED

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COMPLAINT--- CLASS ACTION

THE BOARD OF EDUCATION FOR )

THE METROPOLITAN NASHVILLE )

PUBLIC SCHOOLS,

)

)

Defendant.

)

PLAINTIFFS' FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO DEFENDANT THE BOARD OF EDUCATION FOR THE METROPOLITAN
NASHVILLE PUBLIC SCHOOLS TO: The Board of Education for the Metropolitan Nashville Public Schools You are hereby requested to answer in accordance with Rule 33 of the TENNESSEE RULES OF CIVIL PROCEDURE the interrogatories attached hereto as EXHIBIT "A." These interrogatories are continuing, and if at anytime after answering any one of these
interrogatories, new or additional information comes to your attention, you are hereby
required to supplement your answers to these interrogatories and to serve a copy of said supplemented answers upon the undersigned consistent with the Tennessee Rules of Civil Procedure.
The term "~" and "Defendant" as used in these interrogatories refers to you as an
individual, and if the defendant is a corporation or governmental entity, its officers,

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directors, employees, agents, subsidiaries, servants, investigators, msurance adjustors, attorneys, and anyone else acting on your behalf or under your control.
The term "document" refers to and includes any writing, letter, memoranda, report, note, record of telephone conversation, book, pamphlet, photograph, x-ray, diagnostic test, videotape, sound recording, or data computation upon which information can be obtained or translated by the Plaintiff into usable form. The term "document" also includes any videotaped, written statement, or oral statement which is later reduced to writing or recorded by any electronic means.
The term "non-party" as used herein means a person or entity who is, or may be, liable to the claimant in part or in whole for the damages claimed, but who has not been joined in the underlying action.
When asked to identify a document in these interrogatories, you are to state completely and in detail the nature of the document (letter, statement, report, etc.), the substance of the document (what the document contains), the date of the document, and the identity and occupation of the person having possession thereof, and if privilege is claimed, state the nature of the privilege.
If any or all documents responsive to these interrogatories are no longer in your possession, custody or control because of destruction, loss, or other reason, you are requested to identify each such document fully, including the nature of the document, its date, the identity of the person who prepared the document, and the identity of the person or entity for whom it was prepared, and to the extent possible, you are requested to summarize the contents of the document and state the manner and date of the disposition thereof.
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When asked to identify a person or entity in these interrogatories, please state the full name of the person or entity, his occupation or their business, his or their last known business and residence address, his or their last known business and residence telephone number. Also, if that person or entity is employed by you in any capacity or does business with you, please state in addition to the forgoing, the nature of his employment or business with you.
The masculine term "his" or "him" as used in these interrogatories include the feminine gender where applicable.
To the extent that you, in good faith, believe that these discovery requests violate any limit set-forth in any applicable Local Rule court in which this case is filed or any of the other TENNESSEE RULES OF CIVIL PROCEDURE, or any other provision of controlling Tennessee law, please contact Plaintiff's counsel by telephone prior to asserting such an objection and consider the interrogatory or request for production of documents as having been made pursuant to Tennessee's Open Records Act.
You are hereby requested to produce in accordance with Rule 34 of the TENNESSEE RULES OF CIVIL PROCEDURE within the time prescribed for answering these interrogatories each document identified in the answering of these interrogatories and any document requested in EXHIBIT "B" below.
EXHIBIT "A" INTERROGATORIES
INTERROGATORY NO.1: Identify the perpetrator alleged to have compelled Gilbert Lopez to perform oral sex on him as outlined in the Complaint @ed herewith.
ANSWER:
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INTERROGATORY NO. 2: Identify the number of special needs school buses in the Metro Nashville School System. ANSWER:
INTERROGATORY NO. 3: Identify the number of special needs students transported on school buses in the Metro Nashville School System. ANSWER:
INTERROGATORY NO. 4: Identify the number of special needs students attending school in the Metro Nashville School System. ANSWER: INTERROGATORY NO.5: Outline the purpose that video recorders were placed on special needs student buses. ANSWER: INTERROGATORY NO.6: Outline, in detail, every action taken by Defendant in
response to incidents of sexual assault occurring on October 5, 2006, involving Jerma
Staehling, through the date of the incident that is the subject matter of this lawsuit, to prevent incidents of sexual assault and battery from occurring on special needs school buses.
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Please include the dates of the steps taken and the name and position of the District employee who took the action. ANSWER:
EXHIBIT "B" REQUEST FOR PRODUCTION OF DOCUMENTS REQUEST NO. 1: Produce any "Release" or other document you claim is necessary to be executed by any person to release any document(s) to which you claim any privilege pertaining to any interrogatory responses above or the release of any documents sought through request for production of documents below. RESPONSE: REQUEST NO. 2: Please provide a copy of any and every document in your possession pertaining in anyway to (1) the perpetrator identified in Interrogatory 1 above, (2) Gilbert Lopez, and (3) the incident that is the subject matter of this lawsuit. RESPONSE: REQUEST NO. 3: Please provide a copy of any and every document in your possession pertaining to complaints of physical or sexual abuse received by the Defendant involving any special needs students in the past five (5) years RESPONSE:
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REQUEST NO.4: Please provide a copy of any and every document pertaining to the retention policy and reviewing policies of videos taken on Defendant's school buses RESPONSE: REQUEST NO.5: Please provide a copy of any and every document pertaining to Kimberly Lopez's request to have a school bus monitor placed on Gilbert Lopez's school bus as well as Kimberly Lopez's request to have Gilbert Lopez placed on a special needs school bus. RESPONSE: REQUEST NO. 6: Please provide a copy of any and every document pertaining to the Defendant's policies and procedures regarding sexual battery, assault, harassment and molestation of students. RESPONSE: REQUEST NO.7: Please provide a copy of any and every document pertaining to the dates and locations of all the sexual harassment and assault incidents committed against any special needs student while in care of the Defendant for the last five (5) years. RESPONSE: REQUEST NO.8: Please provide any documents outlining and documenting the steps taken by the Defendant addressed in Interrogatory 5 above to ensure that this type situation did not occur again.
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RESPONSE: REQUEST NO.9: Please provide a copy of any and every document the Defendant intents to introduce at the trial of this lawsuit. RESPONSE:
Respectfully submitted,
01 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that the original of the foregoing PLAINTIFFS' FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO DEFENDANT THE BOARD OF EDUCATION FOR THE METROPOLITAN NASHVILLE PUBLIC SCHOOLS" has been served via HAND DELIVERY to the following: The Board of Education for the Metropolitan Public Schools Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Square 204, Suite 108 Nashville, Tennessee 37201 On this, the 30th day ofJuly, 2007.
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 24 of 45 PageiD #: 24

IN THE CHANCERY COURT FOR DAVIDSON COUc~:,I

f:" f)
ENktssEE

AT NASHVILLE
ZC07 AUG -I PM 3: 04

KIMBERLY LOPEZ, as guardian,

)

next friend and parent of GILBERT

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LOPEZ a minor, individually and as a )

member of a class of similarly situated )

individuals,

)

CLE K r~ ~~,"; .\ ~If .. DAVIDSO NCO. Ct:,\. · c~ R Y CT.
GQpyc.&M.

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Plaintiffs,

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v.

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DOCKET NO. 07-1687-IV

)

JURY TRIAL DEMANDED

)

COMPLAINT--- CLASS ACTION

THE BOARD OF EDUCATION FOR )

THE METROPOLITAN NASHVILLE )

PUBLIC SCHOOLS,

)

)

Defendant.

)

MOTION REQUESTING EXPEDITED HEARING

c:

COMES NOW Plaintiff, Kimberly Lopez, through her undersigned counsel of record

pursuant to Rule 26.07 of the Local Rules of Court for this Twentieth Judicial District ;uld <·

respectfully requests that the Court hear Plaintiffs contemporaneously filed Motion fo;--=:

Leave of Court to Pursue Expedited Discovery and For Production of Tangible Evidence on

an expedited basis. The bases for this request are stated in Plaintiffs Motion for Leave of

Court. Included with this request is a proposed Order.

Respectfully submitted,

BLACKBURN & McCUNE, PLLC

. Gary Blackburn (#3484) Malcolm L. McCune (#2660) Robert T. Homlar (#25463) 101 Lea Avenue Nashville, Tennessee 37210 Telephone: (61 5) 254-7770 Facsimile: (615) 251-1385 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that the original of the foregoing MOTION REQUESTING EXPEDITED HEARING has been served via HAND DELIVERY to the following: The Board of Education for the Metropolitan Public Schools Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Square 204, Suite 108 Nashville, Tennessee 37201 On this, the 1st day of August, 2007.
Robe
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r.:aa r:r~
IN THE CHANCERY COURT FOR DAVIDSON COUNTY, 'PENNF:SSEE

AT NASHVILLE

KIMBERLY LOPEZ, as guardian,

)

next friend and parent of GILBERT

)

2001 AUG -I PH 3: 04

LOPEZ a minor, individually and as a ) member of a class of similarly situated )

individuals,

)

)

Plaintiffs,

)

)

v.

)

DOCKET NO. 07-1687-IV

) ) THE BOARD OF EDUCATION FOR )

JURY TRIAL DEMANDED COMPLAINT--- CLASS ACTION

THE METROPOLITAN NASHVILLE )

PUBLIC SCHOOLS,

)

_,

)

Defendant.

)

I

MOTION FOR LEAVE OF COURT TO PURSUE EXPEDITED DISCO]ERY AND FOR PRODUCTION OF TANGIBLE EVIDENCE . '"'

COMES NOW Plaintiff, Kimberly Lopez, through her undersigned counsel of rec~r~,

pursuant to Rule 30.01 of the TENNESSEE RULES OF CIVIL PROCEDURE and moves for leave

of Court to take depositions prior to the expiration of 30 days after service of the Summons

and Complaint upon the Defendant. In support of this motion, Plaintiff would show the

Court as follows:

1. Plaintiffs filed this Complaint on July 30, 2007, regarding allegations of sexual assault and abuse involving nine (9) year old Plaintiff Gilbert Lopez and a nineteen (19) year old fellow student on a special needs school bus occurring on or about May 7, 2007.

2.

For the upcoming academic year, Gilbert Lopez has been assigned to the same

school and would be transferred on the same school bus this incident occurred on for the

school year scheduled to begin in on August 13, 2007.

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3.

Defendant, by and through Defendant's agents, have indicated that the alleged

perpetrator may be assigned to the same school, despite the incident and despite pending

criminal charges against him. However, Defendant has refused to comment, disclose or

discuss whether the alleged perpetrator will in fact be so assigned.

4. Jenna Staehling, a special needs student who would be a member of the certified class in the case sub judice and has similarly allegedly been sexually assaulted on a school bus under the control of the Defendant which is the subject matter of a pending lawsuit in the Circuit Court under Case Number 07-C-2017, a copy of which is filed herewith as EXHIBIT "1", has similarly been informed that the alleged perpetrator in that case may be assigned to the same school as Jenna for the coming year.

5.

For the safety of Plaintiff Gilbert Lopez and Jenna Staehling, it is imperative that

Plaintiffs be permitted to determine the alleged perpetrators' status prior to school

beginning.

6'.

In addition, Defendant, by and through the legal department for the Metropolitan

Government of Nashville and Davidson County, has refused to provide a copy of the

available video of the May 7, 2007, incident involving Lopez stating in a letter, a copy of

which is enclosed as EXHIBIT "2", that disclosure would only be provided "with a court

order or subpoena for it or a signed written release from the parent of each child [shown on

the video]."

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7.

A prior request for the available video from the incident involving Staehling was

honored, with no order, subpoena or release required, by Defendant as evidenced by the

enclosed letter of April 18, 2007, EXHIBIT "3".

8.

In order to protect Gilbert Lopez and Jenna Staehling, it is necessary to quickly

discover the threat each faces, thereby necessitating this Motion.

9

Plaintiffs are seeking class certification of a class of special needs students and are

obligated, pursuant to Rule 26.14 of the Local Rules, to file a Motion for class determination

within sixty (60) days of the filing of the complaint.

9.

There is a very good likelihood of immediate and irreparable harm to the class of

special needs students should they be subjected to being transported on the Defendant's

school buses given the present lack of oversight on buses once school begins August 13,

2007.

10. In order to determine the number of students, and their parents, who are class members as well the promptly and fully investigate this matter, it is necessary to review all available video and reports of incidents similar to those having alleged to have occurred involving Plaintiff Gilbert Lopez and Jenna Staehling within the possession and control of the Defendant.

WHEREFORE PLAINTIFF PRAYS that this Court grant leave for Plaintiff to take expedited discovery in this case including deposition of Defendant's employees and agents

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 29 of 45 PageiD #: 29

with pertinent information and for an Order directing Defendant to produce within three (3) business days of the entry of this Order, every video or document in any tangible form within its control or possession pertaining to Gilbert Lopez and Jenna Staehling along with every video depicting or document pertaining to, in any tangible form, and showing any special needs student on any school bus within the Defendant's system or with whom Defendant contracts providing school services for the 2006-2007 academic school year.
Respectfully submitted, BLACKBURN & McCUNE, PLLC
. Gary Blackburn (#3484) YMalcolm L. McCune (#2660) Robert T. Homlar (#25463) 101 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385 Attorneys for Plaintiffs
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 30 of 45 PageiD #: 30

CERTIFICATE OF SERVICE I hereby certify that the original of the foregoing MOTION FOR LEAVE OF COURT TO PURSUE EXPEDITED DISCOVERY AND FOR PRODUCTION OF TANGIBLE EVIDENCE has been served via HAND DELIVERY to the following: The Board of Education for the Metropolitan Public Schools Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Square 204, Suite 108 Nashville, Tennessee 37201 On this, the 1st day of August, 2007.
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 31 of 45 Pagel D #: 31

R~..C' D IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, AT NASHVILLE

t::,

ARTHUR STAEHLING and

)

JULIE STAEHLING, as guardians,

)

next friends and parents of

)

JENNA STAEHLING a minor.

)

)

Plaintiffs,

)

)

v.

)

)

)

THE BOARD OF EDUCATION FOR )

THE METROPOLITAN NASHVILLE )

PUBLIC SCHOOLS

)

)

Defendant.

)

2007 JUL 16 PH ~: 18
RICHARD R. ROOKE?.. CLERK
') .-. - ·--~- .. ;,.•.t- •.
DOCKET NO. JURY TRIAL DEMANDED

COMPlAINT

Plaintiffs Arthur Staehling and Julie Staehling, and as guardians, next friends and

parents of Jenna Staehling, (hereinafter, collectively, "Plaintiffs):>), for their cause of action

against Defendant The Board of Education for the Metropolitan Nashville Public Schools

state as follows:

PARTIES AND VENUE

1. Plaintiffs Arthur Staehling and Julie Staehling are the biological parents of

Jenna Staehling, an autistic special needs student attending public school at J.T. Moore

Middle School in Nashville, Tennessee. Jenna was eleven (11) years-old at the time of the

incidents described herein. The Plaintiffs reside in Davidson County, Tennessee.

2. Defendant The Board of Education for the Metropolitan Nashville Public

Schools, (hereinafter "BOE.,), is a political entity responsible for oversight, rule making,

compliance with state and Federal law, and control of the Metropolitan Nashville Public

Schools system, (hereinafter "MNPS") which the BOE oversees.

EXHIBIT
I 1

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 32 of 45 PageiD #: 32

3.

The acts, errors and omiss1ons complained of herein were committed within

Davidson County, Tennessee, and as such, this Court has proper venue and jurisdiction over

the matter under the laws of Tennessee.

ALLEGATIONS OF FACT

4.

In October of 2006, Jenna Staehling was a student at J.T. Moore Middle

Schoo1, a public school in the MNPS. She was transported to and from school in a school

bus designated and designed for special needs students.

5.

On October 4, 2006, and again October 5, 2006, Jenna Staehling suffered a

prolonged sexual battery by a fellow spec1al needs student while riding home from school on

the school bus, (hereinafter referred to as the «incidents"). These incidents were recorded

on the MNPS school bus video camera.

6.

The incidents occurred wjthin feet of the school bus driver Danielle Beach,

an employee of the Defendant, as she operated the school bus w1thin the scope of her

employment.

7.

Beach had been hired by the Defendant less than three months before the

incidents. A criminal background check was not performed by the Defendant on Beach

until after the incidents. The criminal background check performed by Defendant came

back positive from the Tennessee Bureau of Investigation showing a crinllnal record rustory

for Beach.

8.

Only five children were on the school bus at the time of the incidents. All of

the students other than Jenna Staehling were male.

9.

The school bus on whlch the incidents occurred only had ·two (2) rows of

fixed seating for students located directly behind Beach as she drove.

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 33 of 45 PageiD #: 33

10. Beach was capable of observing all children on the school bus during the incidents as she drove and had a duty to do so. Because Jenna Staehling suffers from autism, she is defenseless and at special risk for harm. The Defendant had a duty to anticipate harm to Jenna.
11. Prior to the incidents, Jenna Staehling had been inappropriately kissed by the same special needs student, an incident of which Defendant, by and through employees of Defendant knew or should have known.
12. Prior to the incidents, Plaintiff Arthur Staehling had become concerned about inappropriate contact of a sexual nature between Jenna Staehling and the same special needs student involved in the incidents, which he reported to Beach.
13. Jenna Staehling's autism prevents her from being able to speak up or defend herself when harmed.
14. Despite actual knowledge of Jenna's disabilities, and the obvious threat presented by placing her in close proximity to a group of adolescent males, particularly adolescent males who too had special needs of their own, Defendant failed to protect Jenna from harm to which it had exposed her.
15. The incidents were foreseeable given the perpetrator's prior inappropriate contact with Jenna Staehling while under the supervision of the Defendant's employees.
16 The Defendant failed to train Beach for a pos]tion transporting special needs students. She was not trained by Defendant with regards to the care and protection of children with autism.
17. The Defendant assumed and created a special relationship w1th Jenna Staehling by placing her on a special needs school bus due to her condition and owed Jenna an obligation to protect her against foreseeable risks of harm such as she suffered.
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 34 of 45 PageiD #: 34

18. The Defendant received funding from the United States Federal government

for the purpose of funding educational programs.

19. As a direct and proximate result of Defendant's conduct and the conduct of

Beach, Jenna Staehling has suffered physical and emotional injury for which she is entitled to

damages for past and future expenses, past and future physical pain and suffering, mental

anguish, and past and future lost capacity for the enjoyment of life.

CAUSES OF ACTION

GOVERNMENTAL TORT LIABILTYACT

20. Defendant is vicariously liable under principles of common law and the

Tennessee Governmental Tort Jjability Act, T.C..i\. § 29-20-101 et seq. for injury suffered by

Jenna Staehling.

21. Beach's negligent acts and omissions as outlined above were operational in

nature and not discretionary as contemplated by T.C.A. § 29-20-205.

22. Beach failed to exercise reasonable care and proper oversight under the

circumstances which was a proximate cause ofPlaintiffJenna Staehling's injuries.

23. Beach negligently supervised Plaintiff Jenna Staehling and her attacker

causing and exacerbating PlaintiffJenna Staehling's injuries.

24. Defendant, and Beach, failed to properly report the incidents to law

enforcement and proper authorities as required by T.C.A. § 49-6-4301, § 3 7-1-403; and § 37-

1-605.

42 u.s.c.s. § 1983

25. Jenna Staehling's Constitutional rights were violated as a result of the

incidents.

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 35 of 45 PageiD #: 35

26. The Defendant was deliberately indifferen~ making a deliberate and conscious choice, to an obvious danger that resulted in deprivation ofJenna Staehling's Constitutional rights by:
(a) failing to train school employees and Beach; (b) failing to adopt or implement policies to prevent the sexual assaults against Jenna Staehling and similarly situated students from occurring; (c) failing to properly supervise or discipline employee Beach and school employees; (d) permitting Beach, an incompetent and untrained school bus driver, to transport Jenna Staehling; and (e) failing to train Beach as to reporting procedures for incidents such as those at issue in this case. 27. Defendant had actual or constructive notice that their actions or failure to act was substantially certain to result in a Constitutional deprivation, and Defendant consciously or deliberately chose to disregard the risk of hann. 28. Defendant's failure to train Beach amounts to deliberate indifference to the rights ofJenna Staehling and other special needs students. 29. Defendant's policies were the moving force behind the constitutional violation Jenna Staehling suffered. The Defendant's failure to train its employees, in particular Beach, in respect to Jenna's autism and the special needs she had, evidences a deliberate indifference to the Constitutional rights ofJenna. 30. Defendant knew that special needs students required specialty transportation, and specialized oversight. Defendant purchased specially designed and manufactured buses, to allow Defendant to accomplish this task.
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 36 of 45 PageiD #: 36

31. The need to train special needs school bus drivers is so obvious that
Defendant's failure to do so amounts to deliberate inilifference to special needs students> Constitutional rights.
32. As a direct cause of the Defendant' failure to adequately train, adopt or implement certain policies, and properly supervise school employees and Beach, Jenna Staehling suffered Joss and hann including v1olation ofJenna>s Constitutional rights; including, but not limited to, rights under the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution as protected by 42 U.S.C.S. § 1983 et. seq.
20 U.S. C S. § 1681 (uTidc IX~/ 33. The incidents and prior inappropriate contact of a sexual nature were so severe, pervasive, and objectively offensive that they deprived Jenna Staehling of access to the educational opportunities or benefits provided by the MNPS. 34. Defendant had actual knowledge of the incidents and prior inappropriate contact of a sexual nature. 35. Defendant was deliberate1y indifferent to the incidents and prior inappropriate contact of a sexual nature. 36. As a result of the Defendant's deliberate indifference to Jenna Staehling's sexual harassment, Defendant created and allowed to continue an intimidating, hostile, offensive and abusive school environment that violated Title IX of the Education Amendments of 1972 outlined in 20 U.S.C.S. § 1681 et. seq..
PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand:
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 37 of 45 PageiD #: 37

a.

That process be issued requiring the Defendant to answer this Complaint

within the time required by law;

b.

The Plaintiffs be awarded such damages as will fully compensate Plaintiffs

for all injury caused by the Defendanes actions in violation of Tennessee common

law, Tennessee statute and Federal law;

c.

That Plaintiffs be awarded attorneys" fees authorized under 42 U .S.C.S. §

1988 for Defendant's violation of20 U.S.C.S. § 1681 et. seq. and 42 U.S.C.S. § 1983

et. seq.

d.

That Plaintiffs be awarded such other, additional or general relief as is

considered necessary and proper as the interests of justice may require; and

e.

For a jury to hear and render judgment on those causes of action so triable.

Respectfully submitted,
BLACKBURN & McCUNE, PLLC
. Gary Blackburn (#3484) obert T. Homlar (#25463) 101 Lea Avenue Nashville, Tennessee 37210 Phone Number: (615) 254-7770 Facsimile: (615) 251-1385 A ttomeys for Plaintiffs

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 38 of 45 PageiD #: 38

.~
CIRCUIT COURT SUMMONS

STATEr;1~6:~
DAVIDSbN COUNTY
201" JU[}[(JlAil. 1DfS~J'et8

NASHVILLE. TENNESSEE
[8J fjrst
0 AJias 0 Pluries

Arthur Staehling and

__/!C.___ __. CIVIL ACTION n :DOCKET NO. __

Julie Staehling, as guardians. next friends and parentS;:of

Jenna Staehling, a minor

Plriintiff

Vs.

The Board of Education for The Metropolitan Public Schools
(SERVED by and through Deputy Director/Acting Director Sue B Cain Metropolitan Nashville Law Department. Ste. 108 2 Public Souare 204 Metro Courthouse

Nashivlle, TN 37201) To the above named Defendant:

Defendant -

Method of Service:
0 Davidson County Sheriff D Out or County Sheriff D Secretary of State D Certified Mail
[8] Personal Service
D Commissioner of Insurance

You are summoned to appear and defend a civil action filed against you in Circuit Court, 1 Public Square, Nashville, TN 37201, and your defense must be made within thirty (30) days from the date this summons is served upon you. You are further directed to file your defense with the Clerk of the Court and send a copy to the Plaintiff's attorney at the address listed below.

In case of your failure to defend this action by the above date, judgment by default will be rendered against you for the

relief demanded in the complaint.

RICHARD R. ROOKER

ISSUED:

Circuit Court Clerk Davidson County, Tennessee

By
Deputy Clerk

ATIORNEY FOR PLAINTIFF or
PLAINTIFF'S ADDRESS

W. Gary Blackburn
c/o Blackburn & McCune, PLLC
Address
101 Lea Avenue, Nashville, TN 37210

TO THE SHERIFF:

Please execute this summons and make your return hereon as provided by law.

RICHARD R. ROOKER
Circuit Court Clerk

Received this summons for service this _ _ _ _ day of _ _ _ _ _ _ _, 20__.

r l ADA Coordinator, Margaret larobardiere (862-5204)

SHERIFF

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 39 of 45 PageiD #: 39

-· ...

RETURN ON PERSONAL SERVICE OF SUMMONS
I hereby certify and return that on the _ _ _ _ _ _ day of - - - - - - - - - - - - - , - - - - - - - - - • 20___, 1:

___,l L__ _ _ _ _ served this summons and complaint/petition on

in the following manner:

failed to serve this summons within 30 days after its issuance because
L...------.....J

Sheriff/Process Server

RETURNONSERV~EOFSUMMONSBYMAL

I hereby certify and return, that on the

d~cl --------------,-W----- I sent, postage prepaid by

registered retum receipt mail or certified return receipt mail, a certified copy of the summons and a copy of the compliant in Docket No.

to the defendant,

On the

day of

_ _ _ _ _ _ _ _ _ _ _ _ _ _2_0___ , I received the return receipt for said registered or certified mait, which had been signed

by

on the

daym -------------------~·2_0_______ Said return

receipt is attached to this original summons and both documents are being sent herewith to the Circuit Court Clerk for filing.

SWORN TO AND SUBSCRIBED BEFORE ME ON THIS DAY OF _ _ _ _ _ _ _ _ _, 20_ _.
_ _ _NOTARY PUBLIC or _ _ _DEPUTY CLERK MY COMMISSION EXPIRES:

PLAINTIFF. PLAINTIFF'S ATTORNEY OR OTHER PERSON AUTHORIZED
BY STATUTE TO SERVE PROCESS

NOTtCE
TO THE DEFENDANT($):
Tennessee law provides a four thousand dollar ($4,000.00) debtor's equity interest personal property exemption from execution or seizure to satisfy a judgment lf a judgment should be entered against you in this action and you wish to daim property as exempt. you must file a written list, under oath. of the items you wish to daim as exempt with the derk of the court. The list may be filed at any time and may be changed by you thereafter as necessary; however. unless it is filed before the judgment becomes final, it will not be effective as to any execution or garnishment issued prior to the filing of the list. Certain items are automaticalty exempt by law and do not need to be listed; these include items of necessary wearing apparel {dothing) for yourself and your family and trunks or other receptacles necessary to contain such apparel, family portraits, the family Bible. and school books. Should any of these items be seized, you would have the right to recover them. If you do not understand your exemption right or how to exercise it, you may wish to seek the counsef of a lawyer.

ATTACH RETURN RECEIPT
HERE (IF APPLICABLE)

STATE OF TENNESSEE
COUNTY OF DAVIDSON
(To be completed only if copy certification required.)

I, Richard R. Rooker, Clerk of the Circuit Court in the State and County aforesaid, do hereby certify this to be a true and correct copy of the original summons issued in this case.
RJCHARD R. ROOKER, CLERK
By: __________________D.C.

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 40 of 45 PageiD #: 40

Bll..L PURCELL MAYOR

July 27, 2007

DEPARTMENT OF LAW
METROPOUTAN COURTl-faJSE, SUITE 100 P 0 BOX 100300 NAS~ TENNESSEE 37219-{)300 {615) 862-«341
{615) 862-{)352 FAX

Mr. Robert T. Homlar Blackbume & McCune I01 Lea Avenue Nashville, Tennessee 37210
Re: Giberto Lopez
Dear Mr. Homlar:
Pursuant to your request dated July 20, 2007 related to records of the Metropolitan Nashville Public School System (''MNPS"), I enclose:
1. Camera Download Request Form dated May 7, 2007
2. Personnel File of Christopher Gaines (confidential medical records removed)
3. Personnel File of Gloria Smith (confidential medical records removed)
The video of May 7, 2007 clearly shows students other than Gilberto. Therefore, you must provide us with a court order or subpoena for it or a signed written release from the parent of each student. MNPS does not have possession of the Child Advocate Center videotape interview.
As I collect other records pertaining· to this incident, I will forward such to you.
Sincerely,

/Tdc encls. cc: Keith Phillips

Mary E. Johnston Assistant Metropolitan Attorney

EXHIBIT
2

R:\B\B-008000+\8-008507\L-HOMLAR-REQUEST FOR RECORDS DOC
Case 3:07-cv-00799 Docume ~J¢ntedof~S P~/02/07 Page 41 of 45 PageiD #: 41

METROPOLITAN GOVERN1
BILL PCRCELL \lAY OR

E AND DAVIDSON COUNTY
DEPARTMENT OF lAW METROP<XJTAN COURTI-fOUSE, SUITE 108 POBOX 196300 NASt-MUE, TENNESSEE 3n19--6300 (615)862-6341 (615) 862-0352 FAX

April 18, 2007
Robert Homlar Blackburn & McCune, PLLC 101 Lea Avenue Nashvi1le, Tennessee 37210
Re: Records Request for Staehling

Dear Mr. Homlar:

Please find the enclosed documents, pursuant to your recent request as presented to the Metro Board of Education. The enclosed documents include:

•

Documentation and correspondence from the Office of Student Services,

Asst. Superintendent, Ralph Thompson, pertaining to the incident at

lSSUe.

•

Documentation from the Transportation Department, including a disc

copy of the bus surveillance video, pertaining to the incident at issue.

•

Documentation and correspondence from the Office of fonner J. T.

Moore Middle Schoo] Principal , Deloris Burke, pertaining to the

incident at issue.

•

Documentation and correspondence from the Office of Middle Schools,

Tier Director, Sam Braden pertaining to the incident at issue.

•

The Personnel File for former employee, Danielle Beach, the bus driver

on the day of the incident at issue.

Please feel free to contact me if you have any questions.

EXHIBIT

Case 3:07-cv-00799 Document i.:.i .:-~~"~'ileCf"tlf3/62/07 Page 42 of 45 Pagel D #: 42

1\tiETROPOLITAN GOVERNIV
BILL PlTRCELL \IA'{OR

E AND DAVIDSON COUNTY
DEPARTMENT OF LAW METROPOUTJ\N COLJRTI10USE, SUITE 100 POBOX 1~ NASI-MLLE. 1ENNESSEE 37219-6300 (615) 862-B341 {615) 862-B352 FAX
Sincerely yours,

Jonathan P. Michael Metropolitan Attorney
Enclosures
Cc: Ralph Thompson Asst. Superintendent, Student Services Metro Nashville Public Schools 2601 Bransford Avenue Nashvi11e, Tennessee 37204

,-----:- ~
Case 3:07-cv-00799 Document l~fr;ntl=freaCCJ8702/07 Page 43 of 45 Pagel D #: 43

coPY

RECEIVED AUG - 1 2007

Dav. Co. Chan~_ry_ Court - IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

AT NASHVILLE

KIMBERLY LOPEZ, as guardian,

)

next friend and parent of GILBERT

)

LOPEZ a minor, individually and as a )

member of a class of similarly situated )

individuals,

)

)

Plaintiffs,

)

)

v.

)

)

)

THE BOARD OF EDUCATION FOR )

THE METROPOLITAN NASHVILLE )

PUBUC SCHOOLS,

)

)

Defendant.

)

i ;!

. . ..... '
(,:.:.·,

c:::

DOCKET NO. 07-1687-IV c '" . ')
JURY TRIAL DEMANDED:: :.
COMPLAINT--- CLASS AcTIO~

ORDER

Plaintiffs have moved for an Order granting an expedited hearing upon her Motion for

Leave of Court to Pursue Expedited Discovery. The Court will hear argument on Plaintiff's

Motion for Leave of Court to Pursue Expedited Discovery at _ _a.m./p.m. on the _ _

day of August, 2007, in open court.

SO ORDERED this _ _ day of August, 2007.

Respectfully submitted,

The Honorable Chancellor Richard H. Dinkins 20th Judicial District, Part 4

BLAC~~PLLC
W.G~#3484)
Malcolm L. McCune (#2660) --.._ Robert T. Homlar (#25463)
101 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385

Attorneys for Plaintiffs

Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 44 of 45 PageiD #: 44

CERTIFICATE OF SERVICE I hereby certify that the original of the foregoing ORDER has been served via HAND DELIVERY to the following: The Board of Education for the Metropolitan Public Schools Served through its Deputy/Acting Director, Sue B. Cain Metro Courthouse Metropolitan Nashville Law Department 2 Public Square 204, Suite 108 Nashville, Tennessee 37201 On this, the 1st day of August, 2007.
Robert T. Homlar
/
/
Case 3:07-cv-00799 Document 1-1 Filed 08/02/07 Page 45 of 45 PageiD #: 45

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

KIMBERLY LOPEZ, as guardian, next )

friend and parent of G.L., a minor,

)

)

Plaintiff,

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff-Intervenor

)

Applicant,

)

v.

)

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON

)

COUNTY,

)

)

Defendant.

)

NO.3:07-CV-799, JURY DEMAND Judge Echols Magistrate Judge Griffin

COMPLAINT IN INTERVENTION The United States of America, Plaintiff-Intervenor, alleges for its complaint in .intervention as follows:
PRELIMINARY STATEMENT 1. The United States files this complaint in intervention to reclTess discrimination on the basis of sex in violation of Title IX of the Education Amendmentsof 1972 ("Title IX"), 20 U.S.C. §§ 1681-88. 2. The United States brings this complaint solely against the Metropolitan Government of Nashville and Davidson County ("Metro" or "District").
JURISDICTION AND VENUE 3. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345. 4. Venue is proper pursuant to 28 U.S.C. § 1391(b) because Defendant Metro is located within the Middle District of Tennessee, and the claims alleged in this complaint arose from events that occurred within this judicial district.

Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 1 of 8 PageID #: 1406

PARTIES 5. Plaintiff Kiniherly Lopez is the natural mother of G.L., a special needs child who suffers from autism, mild mental retardation, emotional disturbance, speech impairment and language impairment. G.L. formerly attended elementary school in the Metropolitan Nashville Public Schools System ("MNPS"). 6. Defendant Metro is the political entity responsible for oversight and management ofMNPS. 7. Defendant Metro is a recipient of federal financial assistance.
PROCEDURAL BACKGROUND 8. On July 30, 2007, Plaintiff filed a complaint against Metro in state court on behalf of G.L "individually, and as a member of a class of similarly-situated individuals." The complaint sought relief under common law tort principles, the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq., and 42 U.S.C. § 1983. On August 2,2007, Defendant removed the case to federal court. 9. On April 30, 2008, Plaintiff filed a Fourth Amended Complaint that added new claims for relief under Title IX of the Education Amendments of 1972,20 U.S.C. §§ 1681-88, Title II ofthe Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 10. On July 2,2008, Magistrate Judge Griffin issued a case management order which states that Plaintiff will not" seek class certification.
FACTUAL ALLEGATIONS 11. G.L. suffers from several disabilities, including autism, mild mental retardation, emotional disturbance, speech impairment and language impairment. 12. G.L. began attending school in the District in August 2006. 13. Shortly after the 2006-07 school year commenced, the District assigned G.L. to Genesis Academy ("Genesis").
2
Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 2 of 8 PageID #: 1407

14. Genesis is a private school that contracts with Metro to provide free and appropriate education to certain special needs students who the District deems unable to attend other public schools within Metro because they require increased supervision, including students with emotional disorders, behavioral disorders and learning disabilities.
15. According to Terry Adams, the Founder and Executive Director of Genesis, the "mere fact" that a student attends Genesis should put Metro on notice that the student is "at risk of creating an environment that could be construed as dangerous or at risk."
16. G:1. was initially transported to Genesis in a regular-sized school bus operated by Metro.
17. G.1. was harassed by other male students assigned to this bus, who instructed G.1. to "throw" gang signs and placed stolen objects into his pockets.
18. On or about April 2007, Plaintiff requested that Metro assign a monitor to G.1.' s bus.
19. Metro denied Plaintiffs request for a bus monitor. 20. Plaintiff alternatively requested that G.1. be transferred to a smaller school bus, and Metro agreed to assign G.1. to a small special needs school bus. 21. Unbeknownst to Plaintiff, K.H. - a nineteen-year old boy with a history of sexual misconduct - was assigned to the same bus. 22. K.H. suffers from mental retardation, bi-polar disorder, emotional disturbance and attention deficit hyperactivity disorder. 23. Before assigning K.H. to Genesis, Metro knew that K.H. had committed acts of sexual misconduct at Madison School, a K-12 special education school operated by Metro. 24. On September 27,2004, the faculty at Madison School established a "Safety Plan" for K.H. that required him to be escorted by an adult to the restroom and the lunchroom, and either escorted or supervised by an adult while moving between classes. 25. Even after the Safety Plan was implemented, Metro received complaints from
3
Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 3 of 8 PageID #: 1408

---.-------~--~------,-------..-------.------- ...- . - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _.. _ - - - - - - - - - - -
students and parents that K.H. was continuing to engage in sexual misconduct on his assigned school bus.
a. A January 18,2005 memorandum copied to Metro's Executive Director of Special Education and Special Education Coordinator recounts a complaint thatK.H. - then seventeen years old - exposed his penis to a first-grade boy while riding the school bus, after previously threatening to "do it to the new little kid." K.H. received a ten-day suspension from school as a consequence of this incident.
b. In November 2004, K.H. was involved in "a series of repeated bus incidents of [a] sexual nature including verbal threats to intimidate," according to a Functional Behavior Assessment ("FBA") conducted by Metro officials on February 4, 2005.
c. The FBA further states that "if [K.H.] is closely supervised at all times these behaviors do not occur. Must escort [K.H.] everywhere. Having a bus driver driving his bus is NOT adequate supervision" (emphasis in original).
d. School officials at Madison developed a "Bus Safety Plan" for K.H. Under this plan, K.H. was permanently assigned to the front right hand seat of the bus, and the remaining right hand seat as well as both front left side seats were to be left vacant. Large X's were taped to the front four seats ofK.H.'s bus to remind other students not to sit in those seats.
26. In April 2006, Metro removed K.H. from the Madison School and assigned him to Genesis. According to Terry Adams, the Executive Director of Genesis, Metro transferred K.H. from Madison to Genesis because he required close monitoring and supervision due to his prior history of sexual misconduct.
27. According to Sandra Burton, the Metro official responsible for assigning students with disabilities to special needs school buses, she was never informed about K.H. 's prior sexual misconduct or told that K.H. was a potential threat to other students.
28. Metro did not implement the bus safety plan it developed for K.H. at the Madison School on the bus that it used to transport K.H. to Genesis.
4
Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 4 of 8 PageID #: 1409

29. On May 7,2007, K.H. sexually assaulted G.L. and compelled him to perform oral

sex while riding a special needs school bus operated by Metro (the "May 7 incident").

30. At the time of the May 7 incident, G.L. was nine years old and K.H. was nineteen

years old.

31. Terrilyn Harris, K.H.' s mother, had a meeting with Metro officials prior to the

May 7 incident to discuss K.H.'s inappropriate sexual behavior. The officials at this meeting led

Harris to believe that K.H. would be permanently assigned a bus monitor while he attended

Genesis. 32.

tf
Prior to the May 7 incident, K.H. was assigned a bus monitor for approximately

one and a ha1f months, but the monitor was removed without Harris' knowledge or consent.

33. Prior to the May 7 incident, the District had no policy or protocol for informing

officials in Metro's Transportation Department when a student with severe behavioral problems

or a history of injuring other children was referred for assignment to a bus.

34. Christopher Gaines, the regular driver of the bus that transported G.L. and K.H. to

Genesis, had no knowledge of K.H. 's history of sexual misconduct.

35. On the day of the incident, G.L.'s bus was driven by Gloria Smith, a substitute bus

driver.

36. No one at Metro informed Gaines that Smith would be the substitute driver for his

bus, or provided Gaines with an opportunity to convey instructions to Smith.

37. According to officials at Genesis, no one from Metro informed Genesis that a

substitute bus driver would be driving Gaines' bus on May 7.

38. According to Sandra Burton, Metro's special education bus route coordinator, a

video recording of the May 7 incident reveals that G.L.'s head went down below the back of the

seat two or three times, for approximately three seconds each time.

39. K.H. admitted to officials at Genesis that he told G.L. to perform oral sex, and that

G.L. complied.

5

Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 5 of 8 PageID #: 1410

40. Between May 7 and May 14, 2007, no one at Metro informed G.L.'s parents that G.L. had been sexually assaulted.
41. Between May 7 and May 14, 2007, no one from Metro informed Gaines that a sexual assault had occurred, or instructed Gaines to take additional precautions to keep K.H. separated from G.L.
42. After the May 7 incident, G.L. and K.H. continued to be transported on the same bus together for one week until Metro notified Genesis on May 14,2007 that G.L. had been sexually assaulted.
43. Since the May 7 incident, G.L. has engaged in disturbing behavior that includes,
\
but is not limited to, squeezing his genitals to the point of bruising, asking his mother to cut off his genitals, urinating in his home in inappropriate places, and defecating in his bedroom.
44. In October 2007, G.L. was committed to a residential treatment facility in Memphis, Tennessee. G.L. is currently institutionalized at the Middle Tennessee Mental Health Institute.
45. In the opinion of Sandra Burton, the May 7 incident would not have occurred if a bus monitor had been riding the bus.
46. A Genesis official has asserted that prior to the May 7 incident Genesis asked Metro to place bus monitors on the buses transporting students to Genesis.
47. A Genesis official has asserted that Genesis informed Metro prior to the May 7 incident that monitors were necessary because the students with disabilities who attended Genesis created difficulties that could not be adequately managed or supervised by a bus driver alone.
48. A Genesis official has asserted that prior to the May 7 incident Metro agreed on the need for bus monitors on the buses transporting students to Genesis, but informed Genesis that the District did not have sufficient funds to hire such monitors.
49. According to an official at Genesis, Metro informed Genesis that the school was prohibited from including bus monitors as an accommodation in a student's Individual Education
6
Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 6 of 8 PageID #: 1411

Plan ("IEP"). A Genesis official has testified that including a bus monitor on a child's IEP would require Metro to furnish the monitor.
50. The May 7 incident is noUhe only sexual assault that Metro is aware of involving two students with disabilities on a school bus operated by Metro. See, e.g., Staehling v. Metropolitan Government of Nashville and Davidson County, No. 3:07-CV-797 (M.D.Tenn.); Functional Behavior Assessment ofK.H., conducted February 4,2005 (produced to United States at Bates Number PO-000642).
51. Prior to October 2006, officials in the District's Transportation Department imd Special Education Department agreed that the District needed to assign additional bus monitors to special needs school buses.
52. Despite the acknowledged need for additional bus monitors on special needs school buses, the District failed to hire these monitors because the Transportation Department and Special Education Department could not agree on which department was responsible for funding the monitors.
CLAIM FOR RELIEF 53. The United States incorporates by reference the allegations set forth in paragraphs 1 through 52 above. 54. Defendant Metro's deliberate indifference to known instances of severe, pervasive and objectively offensive sexual harassment of students with disabilities transported on Metro school buses effectively bars the students' equal access to educational opportunities or benefits in violation of Title IX of the Education Amendments of 1972. 55. Unless enjoined by this court, Metro will continue to violate Title IX.
PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests that this Court: a. Declare that Metro has discriminated against G.L. on the basis of sex by failing to address, prevent and remedy the harassment to which he was subjected, thereby denying G.L.
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equal access to its educational activities and services in violation of Title IX of the Education Amendments of 1972.
\
b. Permanently enjoin Metro, its officers, agents, employees, successors, assigns and all persons in active concert or participation with Metro from unlawfully discriminating against students with disabilities on the basis of sex.
c. Order Metro to develop, adopt and expediently implement a comprehensive plan that will ensure a safe, secure and harassment-free environment for all students with disabilities who are transported on Metro school buses.
d. Provide any and all relief necessary to compensate Plaintiff for Metro's acts of discrimination against G.L.

EDWARD M. YARBROUGH United States Attorney Middle District of Tennessee
BY: sl Mark H. Wildasin Mark H. Wildasin (BPR # 015082) Assistant United States Attorney 110 Ninth Avenue South, Suite A-961 Nashville, Tennessee 37203-3870 Tel: (615) 736-5151
Dated: September 10, 2008

sl Grace Chung Becker GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
JEREMIAH GLASSMAN AMY 1. BERMAN JONATHAN FISCHBACH Educational Opportunities Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Ave., NW Patrick Henry Building, Suite 4300 Washington, D.C. 20530 Tel: (202) 305-3753 Fax: (202) 514-8337

8 Case 3:07-cv-00799 Document 141 Filed 11/04/08 Page 8 of 8 PageID #: 1413

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

KIMBERLY LOPEZ, as guardian, next

)

friend and parent of GILBERTO LOPEZ, )

a minor,

)

Plaintiff,

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON

)

COUNTY, and GENESIS LEARNING

)

CENTERS,

)

Defendants.

)

Case No. 3:07-0799 Judge Echols

MEMORANDUM

This is an action brought by Plaintiff Kim berly Lopez (“Ms. Lopez”) on behalf of he r

disabled son Gilberto Lopez (“Gilberto”1) who was allegedly raped by another student while riding

a public school bus for special needs children. Presently pending before the Court are Plaintiff’s

Motion for Summary Judgment (Docket Entry No. 183), and a Motion for Summary Judgment filed

by Plaintiff-Intervenor United States of America (Docket Entry No. 164). Also pending are cross-

Motions for Summary Judgment filed by Defendants Metropolitan Government of Nashville and

Davidson County (“Metro”) (Docket Entry Nos. 174 & 178 2), and Genesis Learning Centers

(“GLC”) (Docket Entry No. 169) . The parties have also filed Motions related to the Sum mary

1In the papers before the Court, Gilberto is often referred to as “Gilbert.” However, in the Fourth Amended Complaint, he is identified as Gilberto.
2Metro seeks summary judgment with respect to both Plaintiff’s Com plaint and the Complaint filed by Plaintiff-Intervenor.
1

Judgment filings, including Motions for Oral Argument (Docket Entry Nos. 218 and 225), Motions to Strike (Docket Entry Nos. 257, 259, and 266), Motions for Leave to File Excess Pages (Docket Entry Nos. 204 and 246), and Motions for Leaveto File Reply Memorandums (Docket Entry Nos. 273 and 276).
In addition, the Plaintiff-Intervenor has filed a Motion for Review (Docket Entry No. 279) of a discovery Order issued by the Magistrate Judg.eFinally, Plaintiff hasfiled a Motion to Remand (Docket Entry No. 280) the claim s she brought against Defendant Metro under the Tennessee Governmental Tort Liability Act (“TGTLA”).
I. FACTUAL AND PROCEDURAL BACKGROUND A. Background and Events Leading up to the Alleged Assault
Gilberto is a nine year old special needs child who suf fers from an array of disabilities, including autism, mental retardation, em otional disturbance, speech im pairment, and language impairment. In August 2006, Gilb erto moved from Chicago to Nashville and enrolled in the Metropolitan Nashville Public School System (“Metro” or “MNPS”). Metro and MNPS receive federal financial assistance.
Shortly after the beginning of the 2006-07 school year, Gilberto was assigned to Genesis Academy (“Genesis” or “Academy”) in Nashville, Tennessee. The Academy is a part of GLC, a private, non-profit corporation, whic h was founded by Terry Adam s (“Mr. Adam s”), GLC’s Executive Director, and his wife, Melissa Adam s (“Mrs. Adams”), GLC’s Assistant Executive Director.
Metro assigns students with severe behavioral problems to Genesis. In fact, only students identified as engaging in problematic behavior that requires modification through a Severe Behavior Intervention Program (“SBI”) are assigned to Genesis.
2

The contract between Metro and Genesis specifies that Metro is responsible for providing
transportation services to the students who attend Gneesis. Specifically, the contract in force during
the relevant period provided:
Duties and Responsibilities. Contractor shall provide special education and related services to students placed by Metro N ashville Public Schools (MNPS). Services shall be provided in accordance with the Individualized Education Plan (“IEP”) of each student. Services will be provided by appropr iately licensed, or certified personnel. The Contractor shall im plement an IEP program which will m eet the unique needs of each child enrolled, with pr ovision for all support m aterials and services necessary for their education. If the Contractor cannot provide the direct and related services called for in the IEP, the Contractor has the obligation not to accept the student. By accepting the student, the Contractor agrees to provide all services and program components including related services requi red by the IEP with the following exceptions: transportation to and from school, foreign language and hearing interpreters, vision-, hearing-itinerant services and hearing interpreters.
(Docket Entry No. 169-1, Exh. 1 at GLC0470)(emphasis added).
When he was first enrolled at Genesis, Gilberto was assigned to ride a regular school bus to
and from school. According to Ms. Lopez, Gilbetro was repeatedly harassed by other students while
riding the regular school bus. That harassm ent took several forms, including stolen items being
placed in Gilberto’s clothes and backpack for which Gilberto was blamed, Gilberto being thrown
down the bus steps on several occasions, and Gilberto being pressured into “throwing gang signs.”
On April 10, 2007, Ms. Lope z contacted Metro’s customer service hotline to voice her
concerns about the treatment that Gilberto wasreceiving while riding on the school bus. The person
who fielded the call recorded the following concerns:
Parent called very upset and concerned about her child. The parent states her son is being assaulted on the Special Ed bus on a daily basis and he is coming home with bruises from other children assaulting himon the bus. The parent states the driver is not able to keep an eye on the kids anddrive the bus and has no control. The request that a bus monitor be added to this bus route [is] not only for her child’s safety but also for the other children being assaulted.
3

(Docket Entry No. 166-23 at 3). Ten days afterthis report, April 20, 2007, a student on Gilberto’s bus threatened to shoot Gilberto and his pa rents. Ms. Lopez claim s that she contacted MNPS’s transportation and special education departments on approximately five occasions in an effort to have a monitor placed on her son’s school bus.
Sometime around this period, Ms. Lopez contacted Linda DePriest (“DePriest”), a MNPS special education coordinator, to see about having a monitor placed on Gilberto’s bus, or to have him moved to a smaller bus. During their conversation, Ms. Lopez told DePriest that Gilberto “had been frequently threatened by some of the older students and she was fearful that he was on the verge of a mental collapse.” (Ms. Lopez Aff. ¶ 9).
At an Individualized Education Plan (“IEP”)3 meeting for Gilberto held April 17, 2007, Ms. Lopez requested that a bus monitor be placed on Gilberto’s bus. However, the IEP, as formulated, did not include a monitor, in spite of Ms. Lopez’s expressed concerns. Ms. Lopez signed the IEP as an “IEP Team Member.”
When Gilberto enrolled in the Metro school system, Metro reviewed Gilberto’s most recent IEP from the Chicago Public School System. The Chicago IEP mandated that Gilberto receive a bus aide as an accommodation for his disabilities.
Following the IEP meeting, Mrs. Adams, on Thursday, April 26, 2007, sent an e-m ail to Sandra Burton (“Burton”), who was employed by Metroas a special education bus route coordinator and was responsible for bus assignments and routes. The e-mail stated:
3IEPs set forth the educational programto be provided to special education students to meet their unique educational needs and describe the educational plan designed to meet those needs. The IEP is reviewed annually in order to identify specfiic goals and issues andto note any progress from the previous year.
4

“Gilberto Lopez.; age 9 being picked on a lot by older kids and m other expressed great concern in IEP meeting we just had; she wants a 1:1. Is there any way for him to be put on Chris Gaines bus since he only has 3-4 students max.” (Docket Entry No. 252-24). In response, Burton asked that Mrs. Adams supply a list of students who rode on bus driver Christopher Gaines’ (“Gaine s’”) bus. Mrs. Adam s supplied a list that consisted of four students, one of which was Kolby (“Kolby”) Harris. Gilberto was transferred to Gaines’ bus on April 29, 2007. Bus drivers generally receive “inform ation sheets” for students assi gned to their buses. However, a student’s behavioral history is not described on these information sheets. Gaines never received an information sheet for Gilberto. Gaines also did not receive an information sheet on Kolby, another passenger on the bus to which Gilberto was assigned. Kolby is ten years older than Gilberto, and was 19 years old at the time of the events which precipitated the filing of this lawsuit. B. The Incident and its Aftermath On May 7, 2007, Gloria Sm ith (“Smith”), a substitute driver, was driving Gaines’s bus. Smith had no i nformation about the passengers, and no m onitor was on the bus. However, the passengers were filmed by a video camera placed at the front of the bus. The video camera, which is pointed towards the back of the bus, is a static camera showing both rows of seats. The videotape, which lasts approximately 20 minutes, shows that on the way hom e from school, Gilberto was riding in the front seat on the passenger side, while Kolby was sitting in the next-to-the-last seat on the driver’s side. Gilbertoleft his seat and went and sat down in the seat next to Kolby. After Gilberto sat down, Kolby continued a conversation he was having with Smith.
5

Shortly thereafter, it appears that Kolby rem oved his sweater or som e sort of other outer garment. Gilberto then ducked down, towards Kolby’s lap.4 This occurred on several occasions. During this period, Kolby’s conversation with Smith ceased. As Gilberto ducked his head down on the last occasion, Kolby began to grunt or moan. Smith (who sounded startled) then asked what was going on, to which Kolby replied that he, Gilberto, was “eating cookies.” Gilberto was instructed by Smith to return to his seat at the front of thebus. As Gilberto stood next to the front seat, Smith again asked what was going on. Gilberto said “nothing,” and Kolby called out from the back that he (Gilberto) was “eating cookies.”
Ms. Lopez and the United States contend that Gilberto was raped in that he was for ced to fellate Kolby, and there is m uch evidence to support that contention. The videotape, while not definitive, certainly suggests as much. Further, Kolby admitted to Susan Sawyer, the Principal of Genesis, that he told Gilberto to perform fellatio on him, and that Gilberto complied. Gilberto told school officials and his parents that he “licked”another student’s “wee wee,”and told his mother that Kolby had “gone to the ba throom in his mouth,” which she understood to m ean that Kolby had ejaculated in Gilberto’s mouth. Metro and Genesis officials who viewed the video of the incident found that the video depicted inappropriate sexual behavior. Further, as a result of the May 7, 2007 incident, Kolby was criminally indicted on the charge of rape of a child.5
For their part, Metro and Genesis point out thathe videotape does not clearly establish what happened. They also note that Kolby told his stepmother that he did not assault Gilberto.
4The seatbacks on the seats in the preceding row prevent seeing exactly what occurred when Gilberto ducked down.
5Kolby was found by the state court to be incompetent to stand trial on the charge. 6

At the end of the afternoon s hift on Ma y 7, 2007, Sm ith went to the transportation department to express her concern that Kolby and Gilberto m ay have engaged in inappropriate conduct. She was concerned that “som ething” may have happened because she had noticed that Gilberto’s head was below the seat and she obesrved Kolby “raise up like he was, you know, zipping his pants or whatever.” (Smith Depo. at 19-20)
The next day, May 8, 2007, G wen Sales (“Sales”), a Metro driver supervisor issued a download request for the video file from the digital camera on Smith’s bus. Pursuant to Sales’ request, Eugenia Roberson (“Roberson”), a Metro safety investigat or, downloaded the video that same day.
Burton was the first Metro official to view the videotape. Burton watched the video on May ll, 2007. She reported her concerns to her supervisors, Guy Morgan (“Morgan”) and Keith Phillips (“Phillips”), on the morning of May 14, 2007, and Morgan viewed the videotape shortly thereafter. Burton contacted Genesis Academy officials and made arrangements to deliver a copy of the video to those officials on that same afternoon.
When the video was delivered, it was viewed by Mr. and Mrs. Adams, Sawyer, and Tracey DeMoss (“DeMoss”), Metro’s bus route coordinator for non-disabled students. After viewing the video on May 14, 2007, Genesis offici als contacted Gilberto’s parents and told them for the first time about the May 7, 2007 incident.6
Kolby was removed from the bus on the afternoon of May 14, 2007, and the Department of Children’s Services and police were contacted.Kolby was removed from Genesis on May 15, 2007.
6MNPS’s policy is to im mediately notify parents if school officials suspect a child is the victim of inappropriate conduct. MNPS claims that the delay in this case was due to the fact that Roberson encountered technical difficulties with her laptop and with converting the files for copying into a DVD format.
7

After the May 7, 2007 incident, G ilberto allegedly experienced visual hallucinations and nightmares about Kolby, heard voices telling himto kill his family, defecated on himself and in his bedroom, attempted to cut off his genitals, refusedto bathe, and required noise froma television or DVD player to “drown out the voices” so he coul d fall asleep. MNPS claim s that Gilberto had engaged in most of these behaviors before the in cident, as reflected by the expert reports of Dr . Warren Thompson (“Dr. Thompson”) and Dr. Robert Begtrup (“Dr. Begtrup”).7
On May 10, 2007, Gilberto assaulted another student on his bus and acted a ggressively towards the bus driver, prompting the driver to call the police. A “Six Weeks Summary” issued by Genesis on May 21, 2007 stated that “Gilberto has otfen refused to do any work. He will completely shut down or try to r un away to get out of com pleting assignments.” The summary also stated: “We are seeing inconsistent behavior with Gilberto. At tim es he is very oppositional and aggressive[.]” (Docket Entry No. 166-7 at GLC 000533).
When Gilberto returned to Genesis for theFall 2007 semester, he acted “fearful” at school, and periodically indicated that he did not wanto ride the bus. On September 19, 2007, Gilberto was removed from Genesis and committed to Youth Villages, a residential treatment facility in Memphis, Tennessee for inpatient mental health treatment.
Gilberto was discharged from Youth Villages on July 14, 2008, but soon after returning home he attempted to set fire to his mother’s house because he thought he heard voices saying Kolby “was coming to get him.” Gilberto was then committed to the Middle Tennessee Mental Health Institute from July 22, 2008 to August 13, 2008.
7On June 7, 2007, Ms. Lopez informed a medical case worker that prior progress remedying some symptoms of Gilberto’s disabilities was “all lost” after the May 7, 2007 incident. However, MNPS claims that, according to the expert reports of Drs. Thompson and Begtrup, the May 7, 2007 incident had little effect on Gilberto’s well-being when compared to a lifetime of neglect and abuse suffered by Gilberto.
8

C. Kolby’s History and Record Prior to the May 7, 2007 inci dent, Kolby had an extensive and docum ented history of
behavioral problems. From August 2002 to February 2005, he attended Madison School, a Metro special education school that offered a structured SBI program.
On August 20, 2003, Kolby was disciplined for enggaing in a sexual act in the school. Metro claims that the discipline involved a “consensual sxeual act with an age-appropriate female student.”
On September 13, 2004, Kolby adm itted to having or al sex and sexual intercourse with another student in the girls’ bathroom, and stated that he had engaged in intercourse with the same student in the girls’ bathroomthe week before. A Suspension Addendumrelative to these incidents indicates that Kolby’s “behavior is directly related to his disabilities,” and notes that sim ilar behavior “[m]ay happen again if he is not supervised.” (Docket Entry No. 165-35, GLC 0164 & 0170). Again, MNPS claims that these acts were consensual and with age-appropriate females.
On September 27, 2004, Madison School established a “Safety Plan” for Kolby that provided as follows:
HE WILL BE ESCORTED TO THE RESTROOM, NO EXCEPTIONS HE WILL REMAIN IN THE CLASS HE IS IN UNTIL ALL STUDENTS HAVE MADE A CLASS CHANGE; THEN HE W ILL GO TO HIS NEXT CLASS EITHER WATCHED BY AN ADULT OR ESCORTED BY AN ADULT. THIS IS FOR ALL CLASS CHANGES. HE WILL PARTICIPATE ONCE A WEEK IN A BOY’S GROUP. HE WILL BE ESCORTED TO THE LUNCHROOM BY AN ADULT WHERE HE IS TO STAY UNLESS AN ADULT GOES WITH HIM. PLEASE, WE ALL MUST HELP WITH THIS PLAN. IT IS ESSENTIAL WE DO NOT HAVE ANOTHER INCIDENCE WITH KOLBY. (Docket Entry No. 166-26 at 000564).
9

A Madison Behavior Incident Report dated January 10, 2005, reflects a com plaint from a student and parent that Kolby exposed his penis to a student on the bus. The complaining student accused Kolby of saying he was going to “show thenew kid my privates” and “do it to him.” Kolby was subsequently suspended for ten days, and thediscipline codes indicated that the suspension was for “sexual harassment,” “intimidation/bullying,” and “repeated violations.” (Id. at 000557).
Shortly after that incident, on January 14,2005, Madison required Kolby to sign a “Contract Agreement” which provided, in part:
- “I will not have ANY type of sexual activity, including sexual touching, remarks, gestures, or writing letters about sex”; - “I will not go a nywhere in the building without an adult’s permission”; - “I will ask an adult to escort me to the restroom anytime I nee[d] to go”; - “I will follow the bus safety plan at all times”; and - “I will tell the school if the bus safety plan is not followed.” (Id. at 000645). The “Bus Safety Plan” established by Metro and which was referenced in Kolby’s Contract Agreement mandated the following: - The f ront right hand seat of the bus will be reserved f or Kolby Harris; - No one will sit in the two front left side seats and no one will sit in the second right seat; and - A large X will be taped to the rfont four seats to remind students not to sit there. (Id. at 000644).
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On January 18, 2005, LuAnn Landrum(“Landrum”), the Principal of Madison, outlined her
concerns about Kolby in a Memorandum to JimOverstreet (“Overstreet”), a District-Level discipline
coordinator for Metro. After recounting the inci dents that led to Kolby’s ten-da y suspension,
Landrum wrote:
I am very concerned that we now havethis incident involving a much younger child. Several students have stated that they are frightened of Kolby and [redacted]’s mother is perusing [sic] legal action. [Redacted] has filed a police report stating she believes her son m ay have been sexually m olested by Kolby. W hile I have no evidence of anything happening with [redacted] and Kolby the situation has quickly escalated out of control. I feel it would be in the best interest of all concerned, for Kolby to be placed in another Severe Behavior Intervention Program.
(Id. at 000580). Landrum sent copies of the Me morandum to DePriest and to Sharon Wr ight
(“Wright”), the Executive Director of Metro’s Department of Special Education.
On February 4, 2005, Metro conducted a Functional Behavioral Assessment (“FBA”) of
Kolby. The FBA states that inNovember 2004 Kolby committed “a series of reported bus incidents
of [a] sexual nature including verbal threats to intimidate” and further states that Kolby’s “sexual
behaviors were determined to be a manifestation of Kolby’s handicapping conditions.” The FBA
also states:
Mother is aware of these tendencies of Kolby and has requested that he be closely supervised at school . . . . If Kolby is closely supervised at all times these behaviors do not occur. Must escort Kolby everywhere. Having a bus driver driving his bus is NOT adequate supervision.
(Id. 000462).
On February 4, 2005, Kolby was rem oved from the Madison School and placed in a
Homebound Program. In August 2005, Metro e nrolled Kolby in a Community Based Transition
(“CBT”) Program at Whites Creek High School. Kolby was transported to and from the school by
his mother.
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On December 6, 2005, a Suspension Addendum was issued which indicates that Kolby received a ten-day suspension for engaging in sexual activity with a female student on November 30, 2005. The police were called to respond to the incident and the alleged victim was instructed to get a rape kit, but did not do so.
After the Novem ber 30, 2005 incident, Metro officials withdrew Kolby fr om the CBT Program. IEP meetings were held on December 6, 2005 and January 3, 2006, after which it was decided that Metro would attem pt to place Kolby at Genesis. In requesting that Genesis accept Kolby as a student, Metro informed Genesis that Kolby had allegedly engaged in sexual intercourse in a bathroom with a female student at Madison School. In fact, the New Student IEP Information Sheet created by Genesis includes the starred nota tion: “Supervise with girls, sexual assault.” (Docket Entry No. 124-5). Kolby enrolled in Genesis on April 3, 2006.
Prior to Kolby’s placement at Genesis, as well as shortly after that placement, his mother Terrilyn Harris (“Ms. Harris”) requested that Kobl y be placed on a bus with only a few students and that those students not be smaller students. Ms. Harris claims that school officials told her that a monitor would be placed on Kolby’s bus, and, in fact, a monitor rode on Kolby’s bus for the first few weeks of his attendance at Genesis. However, that monitor was a “one-on-one” assistant who was assigned to another student anddid not ride the bus after the student’s parents decided to drive their child to and from school.
When Metro officials transferred Kolby to Genesis they never disclosed to Genesis the existence of Kolby’s prior bus safety plan. However, Metro claims that a bus safety plan was not a part of Kolby Harris’ current IEP at the time of his enrollment at Genesis.
On May 4, 2006, a parent called Genesis and told Heather Olson, a social worker, that his daughter had been molested the day before at school. When asked to explain what had occurred,
12

the father stated that his wife was giving thei r daughter a bath the previous evening, when the daughter pointed between her legs and said that “K.H. touched her private parts that day and the day before and that it took place in the classroom.” (Docket Entry No. 251-41 at 1159).
On December 19, 2006, Jody Baker (“Baker”), Kobly’s teacher at Gensis, created a Behavior Intervention Plan for Kolby. Under the “[i]dentify target behavior(s) to be changed,” Baker wrote “Inappropriate Sexual behavior.” Under the headni g “[s]tate the replacement behaviors,” Mr. Baker wrote “To refrain from all inappropriate sexual beha viors . . . To i nteract appropriately with all peers.” Baker also wrote, “thebehaviors that Kolby usually displays are those that tangible rewards work well with. The one issue inappropriate sexual behavior was more serious and dealt with by isolation and 1:1 supervision (seem to be working very well). The reinforcers and consequences work well with/for Kolby.” Genesis claim s that the reference to “1:1" m eant in the classroom Kolby was required to stay within close proximity to a staff person at all times. (Docket Entry No. 214-31).
Dr. Lyn McRainey (“Dr. McRainey”), who was employed by Metro as a school psychologist, conducted a psychoeducational assessment of Kolby on March 16, 2007. After reviewing Kolby’s education file, she observed:
Kolby has a history of inappropriate sexual behavior. It is not clear whether the etiology of his be havior is cognitive, predatory, the result of suspected early abuse, or some combination of the three. Inany case, it is essential that he be closely supervised. Should his sexual behaviors escalate, he may need to get involved with the Rape and Sexual Abuse Center or another such agency. (Docket Entry No. 124-5 at 14). Although Dr. McRa iney made the foregoing observation based upon Kolby’s f ile, she adm its that she is not qualif ied to m ake any psychological conclusions regarding sexual behaviors, because this is not her area of expertise. Nevertheless, Dr. McRainey testified in her deposition that, in light of the inform ation reflected in he r report, she was not
13

surprised to learn that Kolby had sexually assaultedGilberto because it was the type of behavior that Kolby had exhibited in the past. Metro received Dr. McRainey’s assessment on March 27, 2007, approximately six weeks before the incident at issue in this case.
Burton, who had never been informed about Kolby’s prior history, testified in her deposition that had she known of that history, she would have been concerned about some risk to the students who rode with Kolby. D. Other Incidents on Special Needs Buses and Assignments to Such Buses
Prior to the alleged rape or assault at issue in this case, several Metro officials had voiced general concerns about the safety of children riding on special needs school buses. For exam ple, DePriest was concerned about the safety of ch ildren riding to contract schools on buses without monitors and supervision, bas ed upon conversations she had with parents and others. Those concerns generally related to fighting on the bus, throwing item s on the bus and out the bus windows, using profane langua ge, and stealing. She had also heard about an incident of inappropriate touching or sexual activity years before the event at issue in this case.
Burton also was concerned about the safety of the children and bus drivers, particularly as it related to fights which occurred on the buses. Other officials had also ge nerally discussed on occasion the topic of having monitors on the special needs school buses.
On October 5, 2006, Jenna Staehling, a student with disabilities, was allegedly sexually molested by another student with disabilities on a Metro special needs school bus. Suit was filed on her behalf in this Court and styled Staehling v. Metro, Case No. 3:07-797, 2008 WL 4279839 (M.D. Tenn. 2008). After the inc ident, officials at Metro renewed discussions about screening drivers and placi ng monitors on school buses carrying special needs children. Som e of those discussions were with Pedro Garcia (“Garcia”), the Superintendent of Metro schools. Nevertheless,
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between the alleged sexual assault of Jenna Staehling on October 5, 2006 and the alleged sexual assault of Gilberto on May 7, 2007, Metro did not hire any bus monitors.
Prior to the May 7, 2007 incident at issue in this case, a compelling factor in the assignment of students with disabilities was the home address of the student. Responsibility for assignments primarily rested with Metro’s transportation department, and it was guided by a child’s IEP. While bus drivers and transportation officials may have received some information regarding a student’s disabilities and behaviors, they were not privy to the child’s record. Drivers of special education buses did not receive special trani ing on the disabilities or behavioraltendencies of their passengers, although Mr. Adams testified that he offered to discuss “how to handle our kids” with Metro’s bus drivers. Mrs. Adams told Metro officials that bus monitors should be assigned for buses carrying special education s tudents to and from Genesis.8 In her deposition, DePriest adm itted that the combination of a lack of monitor, the absence of screening during the bus assignment process, and insufficient training of bus drivers was a concern because that combination could lead to harm to children with disabilities.
Prior to the May 7, 2007 incident, officials aGt enesis occasionally discussed the placement of monitors on the buses transporting children to itschool with Metro officials. Some Metro school buses did in fact have monitors, but Metro claims this occurred when a monitor was called for in a student’s IEP. An August 6, 2007 memorandum from Phillips to Burton noted that monitors which had been placed on buses serving Murrell School, anohter SBI program, had “proven to be effective in previous school years.” (Docket Entry No. 166-45).
8GLC operates a school in Rutherford County, Tennessee that serves special needs students. Those students are supervised on the school buses by bus monitors.
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Prior to the incident at issue in this case, Educational Assistants (“EA’s”) from contract schools have ridden on buses to and fromcontract schools in place of formal monitors, although this did not occur with respect to buses servicing Genesis. After the incident, DePriest contacted Genesis about the possibility of their Associate Teachers riding buses, but Genesis indicated that was not an alternative because those individuals wree needed at the school when the students arrived and were needed after the students left to do paperwork and assist with planning for the next day. Further, Genesis was concerned about potentialliability since Metro owned and operated the school buses.
Ideally, a school should be provided with each sutdent’s cumulative educational file, so that they can have a clear understanding of the student and his profile. However, in practice, schools sometimes did not receive a com plete record for students. For exam ple, when Kolby cam e to Genesis, Genesis claims it was provided with his current IEP and a prior IEP, but neither IEP had a Functional Behavior Assessment and/or BehaviorIntervention Plan attached and neither indicated that there was a Func tional Behavior Assessm ent and/or Behavior Intervention Plan in place. Genesis also claims that it did not generally recevi e a student’s cumulative file until some time after the student had actually enrolled at the school, a nd did not receive Kolby’ s cumulative file until eight months after he began attending Genesis9. By the time it received that file, Genesis claims that it already had a program in place for Kolby which appeared to be meeting his needs. E. Nature of the Claims in this Case
In her Fourth Amended Complaint, Plaintiff brings claims against Metro and Genesis under 42 U.S.C. §1983, Title II of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12141 et seq., Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, and
9This would still have been four months before the incident at issue in this case. 16

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681. She also brings a negligence claim against Metro under the TGTLA, T.C.A. § 29-20-101, et. seq., as well as a common law negligence claim against Genesis. The United States has filed a “Com plaint in Intervention” solely against Metro alleging a violation of Title IX.
In her response to Metro’s Motion for Summary Judgment, Plaintiff has withdrawn some of her claims based upon the argum ents raised by Metro and the applicable case law. Specifically, Plaintiff has withdrawn her Equal Protection Clause and retaliation claims under Section 1983, her Rehabilitation Act claim, and her ADA claim. (Docket Entry No. 223 at 12 & 29). This leaves for resolution Plaintiff’s Fourteenth Amendment Substantive Due Process claims under 42 U.S.C. § 1983, her negligence claims (both common-law and under the TGTLA), and the claims under Title IX brought by Plaintiff and Plaintiff-Intervenor United States.
II. APPLICATION OF LAW As indicated at the outs et, there are various Motions pending before the Court, including potentially dispositive Motions for Summary Judgment. The Motions will be considered under separate sub-headings. A. Motions for Summary Judgment and Related Motions Plaintiff and Metro have filed cross-motions for summary judgment with respect to all of the claims set forth in the Fourth Amended Complaint. Plaintiff-Intervenor United States has filed a Motion for Summary Judgment with respect to itsclaim under Title IX and Metro has filed a crossmotion for summary judgment on that claim. Defendant Genesis has moved for summary judgment on the claims specifically asserted against it. Because of the similarities between some of the Motions, the Court will address each of the claims set forth in the Fourth Am ended Complaint which the Plaintiff has not withdrawn. First,
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however, the Court will address the motions which were filed relating to the Summary Judgment Motions, set forth the appropriate standard of review, and resolve Metro’s argument that some or all of the claims should be dismissed for failure to exhaust administrative remedies.
1. Motions Related to the Summary Judgment Filings The parties have filed num erous Motions in conj unction with the Motions for Sum mary Judgment, including motions for oral argument (Docket Entry Nos. 218 and 225), motions to file oversized Memorandums (Docket Entry Nos. 204 a nd 246), motions seeking to strike additional statements of undisputed fact (Docket Entry Nos. 257, 259 and 266), and motions for leave to file additional responsive Memorandums. The Court will deny the request ofr oral argument, as the Court finds that oral arguments will not aid the Court in its resolution of the Motions for Summary Judgment. The parties have filed hundreds of statements of alleged undisputed facts, hundreds of pages ofbriefing, and thousands of pages of documents in relation to the Motions for Summary Judgment. Those filings are more than sufficient to assist the Court in deciding the Motions for Summary Judgment. The Motions to Strike additional statem ents of undisputed facts w ill be denied. Those statements amplify the issues and, for the most part, were filed in an effort to contradict statements made in the opponents’ statements of undisputed facts. The Court will grant the requests to f ile oversized Memorandums and additional responsive m emorandums, since those filings are of assistance in resolving the summary judgment motions. 2. Standard of Review A party may obtain summary judgment if the evidence establishes there are not any genuine issues of material fact for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Covington v. Knox County School Sys. , 205 F.3d 912, 914 (6th Cir. 2000).
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The moving party bears the initial burden ofsatisfying the court that the standards ofRule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The ultimate question to be addressed is whether there exists any genuine issue of material fact that is disputed. SeeAnderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary judgment is inappropriate.
To defeat a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue of material fact for trial. If the party does not so respond, summary judgment will be entered if appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of providing specific facts demonstrating that there remains a genuine issue of material fact for trial is triggered once the moving party shows an absence of evidence to support the nonmoving party’s case. Celotex , 477 U.S. at 325. A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
3. Exhaustion of Administrative Remedies As a preliminary matter, Metro asserts that most, if not all, of Plaintiff’s claims should be dismissed for failure to exhaust adm inistrative remedies under the Individuals W ith Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et. seq. Plaintiff argues that the IDEA is inapplicable in this case and that, even if it were applicable, exhaustion of administrative remedies would have been futile. The IDEA was enacted to “ensure that all children with disabilities have available to them a free appropriate public education that em phasizes special education and related services[.]” 20
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U.S.C. § 1400(d)(1)(A). The IDEA is designed to insure that children with special needs receive
a free appropriate public education (“FAPE”), with the primary mechanism being the development
of an IEP. Mallory v. Knox County Sch. Dist., 2006 WL 3484015 at *2 (E.D. Tenn. 2006).
The IDEA contains procedural safeguards, which have been described as follows:
To effectuate the rights created by the Act, states must establish procedures “to ensure that children with disabilitiesand their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education[.]” 20 U.S.C. § 1415(a). One of those proceduresis the opportunity to present complaints “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision oaf free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6). Any com plaints must be given an im partial due process hearing, 20 U.S.C. § 1415(f), and if necessary a review by a higher state agency. 20 U.S.C. § 1415(g). Thos e persons dissatisfied with the results of the administrative hearing and appeal may file suit in state or federal court for judicial review of the adm inistrative decision. Ho wever, plaintiffs m ust exhaust their administrative remedies before filing a civil action to enforce their rights under the IDEA.
Id. at *4. The IDEA also contains an exhaustion requirement by providing:
Nothing in this chapter shall be construed to restrict or lim it the rights, procedures, and rem edies available under the Constitution, the Am ericans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil a ction under such laws seeki ng relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as wouldbe required had the action been brought under this subchapter.
20 U.S.C. § 1415(l).
In this case, Plaintiff brings no claim s directly under the IDEA and seeks com pensatory
damages which are not available under the IDEA. Regardless of how the claimis couched, a claim
which relates directly to a student’s access to aFAPE is required to be exhausted. Long v. Dawson
Springs Indep. Sch. Dist., 197 Fed. Appx. 427, 434 (6th Cir. 2006). Further, a claims for damages,
standing alone, does not excuse aplaintiff from exhausting her administrative remedies. Covington,
205 F.3d at 916. Instead, “‘when a pla intiff has alleged injuries that could be redressed to any
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degree by the IDEA’s procedures and remedies, exhaustion of those remedies is required.’” S.E. v. Grant County Bd. of Educ., 544 F.3d 633, 642 (6th Cir. 2008)(citation omitted).
While exhaustion of claims which relate to a FAPE are generally required to be exhausted, “parents may bypass the administrative process where exhaustion would be futile or inadequate.” Honig v. Doe, 484 U.S. 305, 327 (1988). In this case, Plaintiff alleges that it would have been futile for her to exhaust any administrative remedies. The Court finds merit to that contention.
The IDEA set forth an “elabor ate scheme” in its adm inistrative remedies, Covington, 205 F.3d at 917, and the process is “time-consuming,” Honig, 484 U.S. at 326. Moreover, the IDEA is “not well-sui ted to remedying past instances of physical injuries” or providing relief for “retrospective injuries.” Covington , 205 F.3d at 918. Thus, it is f utile for a plaintiff to have to exhaust administrative remedies where “the condition creating the damage has ceased and there is no equitable relief that would make [plaintiff] whole.” Id.
In this case, Ms. Lopez asserts that she was provided notice of her procedural rights by Metro less than a m onth before Gilberto was sexually assaulted and she again requested that a monitor be placed on Gilberto’s bus only ten days befroe the incident at issue. Given this timeframe, it would have been f utile for her to try to exha ust administrative remedies, and pursuit of those remedies certainly would not have resolved the issue about monitors being on the bus in tim e to prevent the injuries about which she now complains. Moreover, Ms. Lopez seeks to redress injuries resulting from Gilberto’s alleged rape, which is a “noneducational injur[y]” that does not require exhaustion. M.Y. v. Special Sch. Dist. No. 1 , 519 F.Supp.2d 995, 1002 (D. Minn. 2007). See , Padilla v. Sch. Dist No. I , 233 F.3d 1268, 1274 (10 th Cir. 2000)(exhaustion under IDEA was not required where plaintiff sought redress for fract ured skull and other phys ical injuries since “prospective educational benefits” could not “possibly begin to assuage Plaintiff’s severe physical,
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and completely non-educational, injuries”); Bowden v. Dever, 2002 WL 472293 at *5 (D. Mass. 2002)(“claim for violation of bodily inte grity” under Section 1983 was not subject to exhaustion under the IDEA because the “administrative process would provide little benefit”).
4. Section 1983 Claims Plaintiff claims she is entitled to summary judgment because Defendants deprived Gilberto of rights guaranteed him under the Four teenth Amendment because they acted with deliberate indifference under color of state law in violation of Section 1983. Plaintiff also claims that Metro is liable under the due process clause of the Fouterenth Amendment under the “state created” danger theory and Section 1983 for its failure to adequately train its bus drivers.
(a) State Actors and Genesis To prevail on a Section 1983 claim, a plaintiff must show the deprivation of a right protected by the Constitution or laws of the United States that was caused by a person acting under color of state law. Boykin v. Van Buren Twp., 479 F.3d 444, 451 (6th Cir. 2007). While Metro is a state actor for purposes of Secti on 1983, the sam e cannot be said of Genesis in light of the Suprem e Court’s decision in Rendell-Baker v. Kohn, 457 U.S. 830 (1982). In Rendell-Baker, the Supreme Court held that a private school which taught special needs children and received 90 percent of i ts funds from the state and was extensively regulated by the state was not a state actor withi n the meaning of Section 1983. The Court drew on its earlier decision in Blum v. Yaretsky, 457 U.S. 991, 1011 (1982) which held that a private nursing home did not engage in state action despite its extensive regulation by, and receipt of 90 pe rcent of its income from, the state, and wrote: The school, like the nursing home, is not fundamentally different from many private corporations whose business depends primarily on contracts to build roads, bridges, dams, ships, or submarines for the government. Acts of such private contractors do
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not become acts of the governm ent by reason of their significant or even total engagement in performing public contracts. Id. at 840-41. While the Supreme Court recognized that educating maladjusted high school students is a public function, it explained that “the relevant inquiry is not simply whether the private group is serving a ‘public function’ . . . [but] whether the function performed has been ‘traditionally the exclusive prerogative of the state.’” Id. Since education is not an exclusive governmental function, there was no symbiotic relationship or sufficiently close nexus between the private school and the state such that the private school could be characterized as a state actor for purposes of § 1983. Based upon Rendell-Baker, the Third Circuit in Black v. Indiana Area Sch. Dist., 985 F.2d 707 (3d Cir. 1993) found that a bus company which provided school buses under contract to the state was not a state actor under Section 1983 in a suit brought on behalf of children who had been sexually molested on a school bus. In reaching that conclusion, the court wrote:
It is clear from Rendell-Baker that a state contractor and its em ployees are not state actors simply because they are carrying out a state sponsored program and the contractor is being compensated therefor by the state. Nor does the fact that the activity being performed is a public function render the contractor and its employees state actors. For the nature of the contr actor's activity to m ake a difference, the function performed must have been “traditionally the exclusive prerogative of the State.” Id. at 710 (internal citation omitted). The Court in Black concluded that the bus company and its employees were “indistinguishable” from the private school and its employees in Rendell-Baker. Given Rendell-Baker and its progeny, the Court finds that Plaintiff has failed to establish that Genesis was a state actor for purposes of her Section 1983 claims in this case, notwithstanding the fact that Genesis provided its servi ces to, received funding from, and was regulated by the state. This is particularly so since the incident co mplained of occurred on a bus which was owned and operated by Metro, not Genesis.
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(b) Due Process and State-Created Danger Claim Against Metro Plaintiff claims that Gilberto’s Due Process rights were violated because Metro’s “affirmative acts increased the risk of harm.” Plaintiff seeks to hold Metro liable for this violation under the state-created danger theory. As a general proposition, governmental entities arenot liable for injuries sustained by private citizens as a result of the citizen’s own or another private citizen’s conduct. Deshaney v. Winnebago Cty Dept. of Soc. Servs. , 489 U.S. 189, 196 (1989). However, a “state-created danger” is an exception to this general rule because it allows governmental actors to be held liable for the conduct of private actors. “Liability under the state-created-danger theory is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to private acts of violence.” Kallstom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998). The theory is that “‘[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snakepit.’” Id., quoting, Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). In order to establish a state-created danger claim, a plaintiff must show: “(1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special dangetro the plaintiff whereinthe state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its ac tions specifically endangered the plaintiff.” Cartwright v. City of Marine C ity, 336 F.3d 487, 493 (6th Cir. 2003). W ith regard to the affirmative act, where there is “opportunity for reflection and unhurried judgment,” plaintiff must show deliberate indifference, meaning that the st ate actor was “‘aware of facts from which the
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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Arledge v. Franklin County, 509 F.3d 258, 263 (6th Cir. 2007)(citations omitted).
In the state-created danger context, the critical issue is whe ther government officials “did anything ‘affirmative’ to ‘embolden’ the person causing harm to another.” Brooks v. Knapp, 212 Fed. Appx. 402, 406 (6th Cir. 2008)(citing, Jones v. Reynolds, 438 F.3d 685, 703 (6th Cir. 2006)). Thus, failure to act, as opposed to affirmative conduct, does not cause a “state-created danger” to arise. Id . However, because it may be difficult for a court to distinguish between action and inaction, the Sixth Circuit has refined the test byfocusing on “‘whether [the victim] was safer before the state action than he was after it.” Cartwright , 336 F.3d at 493. If a plaintiff cannot i dentify conduct by the state actor which either created or increased the risk of harm to which plaintiff was exposed, then the conduct is said to “f all[] on the inaction side of the line.” Koulta v. Merciez , 477 F.3d 442, 446 (6th Cir. 2007)(collecting cases). Likewise, if a victim is not identifiable at the time of the state action or inaction, a claimunder the state-created danger exception will not apply. Id. at 447.
In this case, Plaintiff has presented evidence from which a reasonable jury could conclude that Metro engaged in conduct which placed Gilberto specifically at risk and created or increased a risk of harmto him. Taken in a light most favorable to her, there is some evidence which supports her theory that Metro affirmatively placed Gilberto, a young and vulnerable boy, on a special needs school bus with a nineteen year old student whom Metro knew to have a history of inappropriate sexual behavior, including sexual intercourse with female students and what can be characterized as predatory acts on young boys, including exposing hipsenis and making threats that he was “going to do it” with the “new kid.” Plaintiffalleges Metro did so in spite of her plea that her son be placed on a school bus with a monitor, and Ms. Harris’s pleas that her son Kolby not be placed on a school
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bus with young children. Instead of heeding such pleas, Kolby was placed on a school bus where he had relatively free reign, even though he had previously been under a Bus Safety Plan for his prior assault which was m eant to insure that he be isolated from other children. Even after the alleged rape, Metro allowed Gilberto and Kolby to ride the same bus for another week. The Court finds that a jury could conclude from the evidence that Gilberto was less safe after Metro assigned him and Kolby to ride the same bus.
A jury could also conclude that Metro acted with the requisite culpability. Its decision to place Kolby and Gilberto on the same bus was nota hurried or a split-second decision and, therefore, the standard to be used is deliberate indifference. See, McQueen v. Beecher Comm. Sch., 433 F.3d 460, 469 (6th Cir. 2008)(teacher’s decision to leave some students in classroom while taking other students to computer classes was not “a split-second decision,” unlike decisions m ade by police officers in a shoot-out or high-speed vehicle chase). Deliberate indifference has been equated with subjective-recklessness and can “‘be proven circumstantially by evidence showing that the risk was so obvious that the official had to have known about it.’” Id. (citation omitted).
The evidence construed in Plaintiff’s favor could lead a jury to conclude that Metro had to have known of the obvious risk of Kolby poten tially assaulting another student on a school bus without a monitor or some sort of special safety precautions. Such evidence includes, but is not limited to the following:
• On August 20, 2003, Kolby was disciplined for engaging in a sexual act in his school. • In S eptember 2005, Kolby w as suspended for having oral sex and sexual intercourse with a student in the girls’ bathroom. This prompted a safety plan which required that he be escorted by an adult while on school grounds. • In January 2005, Kolby was suspended again for exposing his penis to a student on the school bus and telling the student thathe was going to show the “new kid” his “privates” and “do it” to him. This prompted his Principal to write a memo in which
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she expressed great concern because the incident involved a “much younger child” and students were afraid of Kolby. • In January 2005, a bus safety plan was i mplemented which required Kolby to sit in a designated spot on the bus so that hewould be away from other students and in view of the driver and with no other children seated near him. • Kolby was suspended again for ten days in December 2005 for having engaged in sexual activity with another student. • In May 2006, Kolby was alleged to have touched the “private parts” of yet another student. • At an IEP m eeting on April 17, 2007, Pl aintiff requested that a bus m onitor be placed on Gilberto’s bus. Despite all of these events, as well as Ms. Harris’ request that Kolby be placed on a bus with a monitor, or at least on a bus withno small children, and Plaintiff’s repeated request that Gilberto be placed on a bus w ith a monitor, Kolby was placed on the sam e bus as G ilberto. A jury could determine from these facts and circumstances that Metro was deliberately indifferent or subjectively reckless because of the potential risk of harm to Gilberto. In reaching the foregoing conclusion, the Courtis aware of Metro’s heavy reliance upon this Court’s opinion in Staehling. While that case involved a sexual assault by one special education student on another special education student on a school bus designated for specia l education students, the alleged perpetrator in that case wasnot nineteen years old and did have Kolby’s record of sexually activity and abuse of younger students.. Quite the contrary, the evidence showed only that the perpetrator in Staehling had once kissed his victim weeks before the incident, but that incident was only reported to the school bus driver. W hile there had been previous generalized complaints about m isconduct on special needs school buses and a “vanilla letter” f rom the Department of Education about assaults on such buses, those things “did not portend the type of
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harassment that is alleged to have occurred inthis case some eight years later.” Staehling, 2008 WL 4279839 at *10. Staehling is factually inapposite.
While Plaintiff has subm itted facts which pr esent questions f or the jury, she has not submitted evidence which is so one-sided as to obvia te the need for trial. In this regard, genuine issues of m aterial fact exist, including, am ong others, whether Gilberto was in fac t sexually assaulted, whether Gilberto was placed at a high ri sk because he was assigned to a bus with few students which included a nineteen year old boy witha record of sexual activity with other students, and whether Kolby engaged in sexual contact with younger boys, or only that he showed his penis to another male student. Therefore, there are genuineissue ofmaterial fact which exist as to whether Metro was actually deliberately indifferent.
For these reasons, summary judgment will not be granted to either Plaintiff or Metro on their Section 1983 claims based on deliberate indifference or the “state created danger” theory.
(c) Failure to Train Claim Against Metro Plaintiff also alleges that Gilbe rto’s due process rights under the Fourteenth Am endment were violated by Metr o’s alleged failure to properly train its bus drivers. This claim s fails for several reasons. “[T]here are limited circumstances in which an allegation of‘failure to train’ can be the basis for liability under § 1983.” City of Canton v. Harris, 489 U.S. 378, 387 (1989). Such liability may arise only where the governmental entity is deliberately indifferent by not training its em ployees adequately to address an obvious need. Beard v. Whitmore Lake Sch. Dist., 244 Fed. Appx. 607, 611 (6th Cir. 2007). “Before a school district can be held liable for inadequate training, a plaintiff must show that (1) the districts' training was inadequate for the tasks that the employees performed,
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(2) the inadequacy was the result of deliberate i ndifference, and (3) the inadequacy was ‘closely related to’ or ‘actually caused’ the injury at issue.” Id.
In this case, Plaintif f offers no def initive proof of how the bus dr iver’s alleged lack of training either caused or contributed to the incident that is the subject of this lawsuit, or how any additional training could have prevented it. While the Supreme Court in City of Canton explained that, in som e circumstances, “the need for m ore or different training is so obvious, and the inadequacy so likely to result in the violation ofconstitutional rights, that policymakers of the city can reasonably be said to have been deliberately indifferent to the need” if those policymakers do not provide the “obvious” training, id., 489 U.S. at 390, Plaintiff offers no proof from which this Court or a jury could determine that a need for some sort of further training for school bus drivers was “obvious.”
Plaintiff also fails to show that Metro failed to act in response to “‘repeated complaints of constitutional violations by its officers’” which would establish a pattern, particularly in light ofthe fact that Metro’s actions must be viewed “ex ante,” and not “ex post.” Beard, 244 Fed. Appx. at 612 (citation omitted). Moreover, Plaintiff has failed to show that the failure to train was a factor in the alleged rape committed by another student. See, Worthington v. Elmore County Bd. of Educ., 160 Fed. Appx. 877, 822 (11th Cir. 2005)(summary judgment was appropriate where alleged assault was committed by a student on a school bus and there wasno evidence the victim sought the help of the bus driver or otherwise did anything to get the attention of the bus driver).
5. Title IX Claims Title IX provides that “[n]o person in the UnitedStates shall, on the basis ofsex, be excluded from participation in, be denied the benefits of, or be subjected to discrim ination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). In Davis
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v. Monroe County Bd. of Educ,. 526 U.S. 629 (1999), the Supreme Court was presented with a peeron-peer sexual harassment claim under Title IX. In granting certiorari, the Supreme Court aimed “to resolve a conflict in the Circuits over whether, and under what ci rcumstances, a recipient of federal education funds can be liable in a privaetaction for damages arising fromstudent-on-student sexual harassment[.]” Id. at 637. Mor eover, the Supreme Court was called upon to “determ ine whether a district’s failure to respond to student-on-student harassment in its schools can support a private suit for money damages.” Id. at 638.
After reviewing the legislative history of theact and its prior rulings, the Supreme Court held that a school could be liable for peer-on-peer sexual harassment only if the school was deliberately indifferent. That is, schools “are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” I.dat 650. Liability is cabined by the deliberately indifferent standard since a school is only liable for acts of student-on-student harassment “where the [school’s] response to the harassm ent or lack thereof is clearly unreasonable in light of the known circumstances.” Id. at 648.
“To establish a prima facie case of student-on-student sexual harassment, the plaintiff must demonstrate each of the following elements: (1) thesexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the pl aintiff of access to the educational opportunities or benefits provided by the school,(2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipientwas deliberately indifferent to the harassment.” Patterson v. Hudson Area Sch., 551 F.3d 438, 444-45 (6th Cir. 2009). As explani ed below, the Court
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finds there are unresolved m aterial questions of fact which exist with respect to each of these elements, making summary judgment for the Plaintiff, the United States, and/or Metro inappropriate.
(a) Severe, Pervasive and Objectively Offensive Sexual Harassment With regard to the first prong of a prima facie case, the Supreme Court in Davis stated that “a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 651. In th is case, Plaintiff and the United States assert that this prong is m et because Gilberto was raped and thereafter his educational experience suffered as a result of the trauma he endured. Most courts which have addressed the issue have concluded that even a single incident of rape is s ufficient to establish that a child was subjected to severe, pervasive, and objectively offensive sexual harassment for purposes ofTitle IX. See, e.g., J.K. v. Arizona Bd. of Regent,s2008 WL 4446712 at * 12 (D. Ariz. 2008); Kelly v. Yale Uni,v2. 003 WL 1563424 at *3 (D. Conn. 2003); Doe v. Dallas Indep. Sch. Dist. , 2002 WL 1592694 at **6-7 (N.D. Tex. 2002); but see, Ross v. Mercer Univ., 506 F.Supp.2d 1325, 1358 (M.D. Ga. 2007). The leading case for this proposition appears to be Soper v. Hoben, 195 F.3d 845 (6th Cir. 1999), wherein the Sixth Circuit addressed a situation in which a mentally impaired elementary school student alleged that two students fondled her breasts and vagina in the classroom and on the school bus, and that a third boy raped her. The court stated that “[w]ith respectto the first prong of the Davistest,” evidence that plaintif was raped “obviously qualifies as being severe, pervasive, and objectively offensive sexual ha rassment that could deprive [plaintiff] of access to the educational opportunities provided by her school.” Id. at
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854-55. Tellingly, the court did so without com pelling plaintiffs to dem onstrate a causal link between the sexual harassment and a specific denial of access to educational opportunities.
In this case, there is evidence to support Plaintiff’s and the United States’ position that Gilberto was forced to perform fellatio on Kolby and that this would constitute rape of a child in violation of T.C.A. § 39-13-522(a). However, this evidence is not definitive and is challenged by Metro. As Metro points out, the videotape of the incident is not conclusive and Kolby told his mother that he did not assault Gilberto, eventhough he told school authorities the opposite. Given that this Court cannot weigh the evidence on summary judgment, the Court cannot say, as a proven fact, that Gilberto was raped and, as a consequen ce, cannot say, as a m atter of law, that he was subjected to severe, pervasive and objectively offe nsive sexual harassment that deprived him of educational opportunities because of that rape.
As an alternative, Plaintiff and the United States argue that the post-traumatic stress Gilberto allegedly experienced as a r esult of the May 7, 2007 incident dim inished the quality of his educational experience at Genesis so severely that ultimately Gilberto was taken out of school and institutionalized to receive treatment. In this regard, Plaintiff and the United States point out that after the incident, Gilberto experienced hallucinations and nightmares about Kolby, heard voices, defecated on himself, attempted to cut off his genitals, refused to bathe, required background noise in order to sleep, and tried to avoid riding the school bus. They claim such trauma diminished the quality of his educational experience as evidenced by the fact that reports from Genesis after the incident indicated that Gilberto of ten refused to do work, was inconsistent and som etimes aggressive, and that he acted “fearful” when he returned for thestart of the Fall 2007 semester. On September 19, 2007, Gilberto was removed from Genesis and committed to Youth Villages where
32

he stayed for several months, only to resume his destructive activities (such as attempting to set fire to his mother’s house) upon his release.
While this Court agrees with Plaintiff and the United States that withdrawal from school is a concrete and negative effect on the victim’s education, see, S.G. Rockford Bd. of Educ,. 2008 WL 5070334 at *4 (N.D. Ill. 2008)(collecting cases) and while Plaintiff and the United St ates have submitted substantial evidence suggesting a temporal link between the May 7, 2007 incident and Gilberto’s difficulties at school, Metro has subm itted other evidence whi ch it alleges show that Gilberto’s actions at school were manifestations of serious problems he suffered before the incident. In this regard, Me tro has subm itted expert reports from Dr. Bergtrup, a psychiatrist, and Dr. Thompson, a clinical psychologist to support its position.
In his expert report, Dr. Bergtrup opines thateven before the May 7, 2007 incident, Gilberto had several psychiatric conditions, including Post-Traum atic Stress Disorder (“PTSD”) and disruptive behavior disorder. Gilberto also ha d experienced hallucinations and had a history of neglect and em otional and physical abuse by vari ous adults. Dr. Bergtrup concluded that the “alleged trauma in May of 2007 does not appear to m eet the criteria for severe traum a,” so as to support the conclusion that Gilberto developed acutePTSD fromthe incident. (Dr. Bergtrup Report at 3). Dr. Bergtrup also links Gil berto’s placement in the residential treatment center in October 2007 to things which occurred after, and were unrelated to the bus incident, including his sister’s disclosure of sexual abuse, Gilberto jumping from a second story window after being locked in a room by a babysitter who had held a knife to his siset r’s throat, and an intrusive physical exam. In short, Dr. Bergtrup opines that “[t]he record doe s not establish that the incident i n May of 2007 worsened Gilbert’s underlying psychiatr ic state, diagnoses and symptoms,” and, further, “[t]he hospitalization and residential treatment after May of 2007 were not required or caused by the
33

incident in May of 2007,” but instead “were m ade necessary because of Gilbert’s unstable home
environment and preexisting psychiatric diagnoses.” (Id. at 5-6).
Like Dr. Bergtrup, Dr. Thompson finds little correlation between what happened to Gilberto
after May 2007 and what happened on May 7, 2007. According to Dr. Thompson, even before the
incident, Gilberto exhibited sexually ina ppropriate behavior, aggression, suicidal and hom icidal
thoughts, fire-setting, and self-injurious behavior . Dr. Thom pson concludes his report with the
following observations:
It is my belief that there is no clear evidence which shows a causal relationship between Gilbert’s current symptoms and the bus incident. The incident is but one in a vast array of horrendous life events which have contributed to this child’s emotional difficulties.
I do not believe that the bus i ncident markedly worsened Gilbert’s pre-existing psychiatric history. To sum up, if I was Gilbert’s treating psychologist and I was aware of his entire history, I would devote no more than 5% (probably less) of our time dealing with the bus incident and a t least 95% dealing with his m any other issues. Furtherm ore, if you om it the bus incident fr om Gilbert’s history, the subsequent hospitalizations and treatments (including his need for residential care) were predictable and would m ost likely have occurred anyway, just from the standpoint of his life events, inc luding his unstable hom e life, m istreatment by caregivers (possibly including sexual abuse), rejection by the ma n he thought was his father, and separation from his mother from ages 4 to 8.
(Dr. Thompson Report at 5-6).
Clearly the record in this case is not susceptibleto one interpretation. Questions of fact exist
on the issue of whether Gilberto was in fact ra ped, as well as the issu e of whether his later
difficulties in school were linked to the May 7, 2007 incident.
(b) Knowledge of a Substantial Threat of Sexual Harassment
As indicated, the Supreme Court in Davis held that for a school to be liable for student-on-
student harassment, it must have actual knowledge of the harassm ent. Metro claims it cannot be
held liable because there were no reports of Kolby bullying or harassing Gilberto.
34

Recently, this Court discussed the actual knowledge requirement of Davis in Staehling and
wrote:
Post-Davis, some courts have held that, given the lim itations on liability under Title IX, a school must be aware that a particular individual was subjected to a sexually hostile environment or that a particular individual was the perpetrator of sexual harassment. The more accepted view, and the one this Court adopts, is that, to be liabl e, “‘the institution m ust have possessed enough knowledge of the harassment that i t reasonably could have responded with rem edial measures to address the kind of harassment upon which plaintiff's legal claim is based.’” Folkes v. New York College of Ost eopathic Med., 214 F.Supp.2d 273, 283 (E.D.N.Y.2002)(citation omitted); see, Johnson v. Galen Health Inst. Inc. , 267 F.Supp.2d 679, 687 (W.D. Ky. 2003)(collecting cases).
Staehling, 2008 WL 4279839 at *10. This is because, as pointed out in Staehling, “[t]he Davis court
did not limit Title IX liability to a federal eductaion funding recipient’s knowledge of, and deliberate
indifference to, the alleged harassment of a particularindividual, but instead contemplated that Title
IX claims could be based on the recipient’s knowldege of, and deliberate indifference to, a particular
harasser’s conduct in general.” J.K. v. Arizona Bd. of Regent,s2008 WL 4446712 at *14 (D. Ariz.
2008); see, Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 447 F.3d 1282, 1293 (11th
Cir.2007); Escue v. No. Oklahoma College, 450 F.3d 1146, 1153 (10th Cir.2006).
In this case, a reasonable jury could conclude that Metro had knowledge of the proclivities
of Kolby sufficient to hold it liable for his alleged actoi ns in this case. It is undisputed that prior to
the incident in this case, Kolby engaged in se xual activity with other students. W hile Metro
downplays these events as “consensual” and “age apporpriate,” it cannot ignore the fact that Kolby’s
behavioral history was not limited to supposedly innocuous consensual sex. Quite the contrary, in
November 2004, Kolby exposed himself to a ten-year-old male student while riding on a school bus.
Additionally, Kolby threatened to show another student his “privates” and compel that student to
“do it to him” on a school bus. In fact, Kolby’sabusive conduct towards other students earned him
a special designated seat on the school bus up front opposite the bus driver which was segregated
35

from the other students on the bus by empty adjacent seats all around. These prior episodes, coupled with Kolby’s admitted sexual activity, make it clear that an alleged rape of a student by Kolby on a Metro school bus was certainly possible.
A jury could also conclude that Genesis had knowledge of Kolby’s proclivities and Gilberto’s vulnerability. The intake sheet at Gneesis indicated that Kolby needed to be supervised around girls because of prior sexual assaults. The December 16, 2006 Behavior Intervention Plan indicated that Kolby’s “sexual behavior” was a “serious” concern which was best “dealt wi th by isolation and 1:1 supervision.” Four m onths before the incident, Genesis received Kolby’s cumulative file which substantiated his past misconduct. While at Genesis, Kolby engaged in at least two instances of sexual m isconduct. Genesi s also knew that Ms. Lopez had requested a monitor be provided to ride on the school bus and she was very concerned that her son was forced to ride on a bus without one because of his ocnditions and the harassment he received. Genesis also requested that Gilberto be transferred to Gaines’ bus which was smaller and, in doing so, knew that Kolby rode Gaines’ bus without a monitor.
Metro also claims that in order for it to be liable, the proof would have to show that an official with authority to address the problem was informed about the situa tion. In this regard, Metro points out that “[c]ourts have specifically found that school bus drivers, teachers and custodians were not a ppropriate persons under the statute because they do not have authority to terminate or suspend the offending individual.” (Docket Entry No. 175 at 26). While that is correct as a legal proposition, it is inapplicable in this case.
The record reflects that after the bus incidents in Novem ber 2004, Landrum , Kolby’s principal at the time, decided to suspend Kol by for ten days and listed the discipline codes as “harassment,” “intimidation/bullying,” and “repeated violations.” At a subs equent IEP meeting
36

between Metro and Kolby’s parents, a bus safetyplan was put in place which required Kolby to sit
in the front seat and preventedother students fromsitting in nearby seats. In January 2005, Landrum
wrote Overstreet, a district level discipline coordinator, asking that Kolby be transferred to another
SBI placement, specifically because of these incidents and the concern that the most recent incident
“involv[ed] a much younger child.” (Docket Entry No. 166-26 at PO-000580). This is simply not
a situation where only a teacher, or bus driver , or custodian had knowledge about a potential
problem with Kolby.
(c) Deliberate Indifference to Sexual Harassment
In Davis, the Supreme Court held that for a schooldistrict to be liable under Title IX, it must
be shown that it was deliberately indifferent to known sexual harassm ent. A school is deeme d
“‘deliberately indifferent’ to acts of student- on-student harassment only where the recipient' s
response to the ha rassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648. The Sixth Circuit hsadescribed the deliberate indifference
standard under Title IX as follows:
The recipient is not required to “remedy” sexual harassment nor ensure that students conform their conduct to certain rules, burtather, “the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Davis, 526 U.S. at 648-649, 119 S.Ct. 1661. The deliberate indifference standard “does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particulardisciplinary action.” Id. at 648, 119 S.Ct. 1661. The standard does not mean that recipients must expel every student accused of m isconduct. See id. Victims do not have a right to particular remedial demands. See id. Furthermore, courts should not second guess the disciplinary decisions that school administrators make. See id.
Vance, 231 F.3d at 260.
In this case, Metro argue s that it is en titled to sum mary judgment because it was not
deliberately indifferent once it learned of the a lleged assault. To the contrary, it undertook to
investigate the matter on its own, without any prompting from police or parents. Once the video was
37

downloaded and viewed, Burton reported her concerns to her supervisors who, in turn, shared the video with Genesis officials. The same day that Burton’s supervisors viewed the video, Kolby was removed from the bus and the Department of Children’s Services was called and the police were immediately contacted. Metro claims that it did notignore the incident, try to cover it up, or simply warn Kolby not to act in that manner again.
While such evidence might be viewed as actions which do not am ount to deliberate indifference, a jury could conclude otherwise from other evidence in the r ecord. After all, the incident occurred on May 7, 2007, but Gilberto’s pare nt was not apprised of the situation until a week later. In the interim, Gilberto road the same bus as Kolby, rasing the possibility that a second alleged rape could occur at a tim e when Metro should have had knowledge of a potential sexua l assault on the same school bus.
Moreover, Metro’s argument focuses on the actions it took after the incident occurred. However, “Title IX liability can flow from two ‘harassment’ time periods: (a) when a school exhibits deliberate indifference, before a harassing attack on a studentby a fellow student, in a way that makes the student more vulnerable to the attack itself; or (b) when a school exhibits deliberate indifference after an attack, that causes a student to endure additional harassment.” Snethen v. Bd. of Public Educ. for City of Savannah, 2008 WL 766569 at *2 (S.D. Ga. 2009); se,eSimpson v. Univ. of Colorado, 500 F.3d 1170, 1173 (10th Cir. 2007)(summary judgment in Title IX case inappropriate where claim was that coach failed to adequately supervise high school recruits because even before female students were sexually assaulted “there werea variety of sources of information suggesting the risks that sexual assault would occur if recruiting was inadequately supervised”); Zam ora v. North Salem Central Sch. Bd., 414 F.Supp2d 418, 425 (S.D.N.Y. 2005)(Davis implied that prior complaints of others subjected to harassm ent may be considered when judging the response of a
38

school board). In ot her words, a school dist rict can “be liable for acting with deliberate indifference” if a plaintiff “dem onstrate[s] by a preponderance of the e vidence that the School District had actual knowledge of prior facts towhich it responded unreasonably.” Williams v. Paint Valley Local Sch., 400 F.3d 360, 364 (6th Cir. 2005).
In this case, there is a factual question as towhether Metro was deliberately indifferent. The record reflects that Kolby had a well-established pattern of sexual misconduct which was known by a cross-section of individuals at Metro including ittseachers, administrators and IEP teammembers, as well as administrators and others at Genesis.When Kolby was at Madison school, Metro officials instituted a restrictive school safety and bus safety plan to ensure that Kolby did not interact with other students outside the im mediate presence of an adult m onitor. Metro subsequently plac ed Kolby in Genesis where he was closely supervised. However, no com parable structure or supervision was in place with regard to K olby riding the school bus to and f rom Genesis. Nevertheless, Gilberto, a much younger and much smaller boy, was placed on the bus with Kolby at the request of Genesis.
It will be for the jury to determine whether the actions of Metro and/or Genesis in requesting and/or allowing Kolby to rideon a school bus with other and youngrespecial needs children without a monitor or without a safety plan which isolated Kolby from other passengers am ounted to deliberate indifference under Title IX.
6. Negligence Under the Common Law and TGTLA To establish common-law negligence, Plaintiff m ust prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; ( 3) an i njury or loss; (4) cause in fact; and (5) proxim ate, or legal, cause. McClung v. Delta Square Ltd. Ps'hip, 937 S.W.2d 891, 894 (Tenn. 1996). The same elements apply
39

to a claim of negligence under the TGTLA. See , Britt v. Maury Cty. Bd. of Educ., 2008 WL 4427190 at *3 (Tenn. Ct. App. 2008). The determ ination of negligence claims involves mixed questions of law and fact:
The existence and scope of t he defendant's duty is exclusively within the court' s domain. . . . However, whether the defendant breached its duty and whether t he breach proximately caused the injury are generally questions decided by the trier of fact. . . . Thes e questions become questions of law only when the facts and inferences drawn from the facts perm it reasonable persons to reach only one conclusion. . . . Timmons v. Metropolitan Gov’t., 2007 WL 2405132 at *4 (Tenn. Ct. App. 2007)(citations omitted). “[S]chools, teachers, and administrators have a duty to exercise ordinary care for the safety of their students.” Haney v. Bradley County Bd. of Educ., 160 S.W.3d 886, 897 (Tenn. Ct. App. 2004). In their respective Motions for Summary Judgment, Plaintiff, Metro and Genesis focus on the issue of foreseeability. Genesis and Metro cl aim that Plaintiff cannot establish negligence because it was not reasonably foreseeable as a matter of law that Gilberto would be allegedly raped by Kolby, m eaning that Plaintiff cannot establis h the duty or proxim ate cause prongs of the negligence test. For her part, Plaintiff claim s that she has established all of the elem ents of a negligence claim and that she is entitle d to summary judgment because it was foreseeable, given Kolby’s extensive behavioral record involving sexual misconduct, that Kolby would sexually assault Gilberto. “[I]n general terms, ‘[f]oreseeability is the test of negligence.’” Downs v. Bus,h236 S.W.3d 812, 820 (Tenn. 2008)(citation om itted). “‘A risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whomis owed a duty is probable.’” Id. (citation omitted). Conversely, “[i]f an injury giving rise to a cause of action for negligence could not have been reasonably foreseen or
40

anticipated, then there is no proximate cause and, thus, no liability for negligence.” Rathnow v. Knox County, 209 S.W.3d 629, 633 (Tenn. Ct. App. 2006).
The issue of whether it was reasonably fores eeable to Metro and/or Genesis that Kolby would allegedly sexually assault or rape Gilberto on the school bus is clearly a question of fact for the jury. On the one hand, there is evidence (recited in detail previously) from which a jury could readily conclude that both Metro and Genesis were on notice that there was a reasonable probability that Kolby would sexually assault Gilberto, given Kolby’s prior improper sexual contact with female students, his exposing himself to another young boy, the threat that he would “do it” to “the new kid,” and the alarm which was expressed given that his recent contact involved younger students. Conversely, a reasonable jury could also conclude that the attack which occurred in this case was not reasonably foreseeable to either Genesis or Metro in light of the fact that Kolby’s only prior, actual sexual contact was with consenting, age-appropriate females.
Given the evidence which Plaintiff has forwarded in support of her negligence claim s, Defendants’ reliance upon cases such as Roe v. Catholic Diocese of Memphis, Inc., 950 S.W.2d 27 (Tenn. Ct. App. 1996) and Ki ndred v. Board of Educ., 947 S.W.2d 47 (Tenn. Ct. App. 1996) is misplaced. Roe involved the grant of summary judgment to defendant school administrators in a case where a four-year old boy sexually assaulted another four-year old boy while both were unsupervised in a preschool bathroom. The assaultwas found to be unforeseeable as a matter of law inasmuch as there had never been a complaint about a sexual assault at the school and no evidence that the school had any reason to expect that type of behavior from the perpetrator.
Kindred involved the fatal shooting of a juniorhigh school student by a high school student. About an hour before the shooting, the two had engaged in a “minor struggle,” after which the high school student said “I’ll be back.” The shootingwas found not to be foreseeable because threats and
41

skirmishes among junior high and high school aged students were not uncom mon. However, carrying out a threat was uncommon, and a killing could not be reasonably anticipated because the perpetrator was not known to carry a weapon and had not caused any problems at the school.
The facts construed in Plaintiff’s favor paint a markedly different picture in this case. Kolby was known to have engaged in sexual m isconduct, and at one point bus and school safe ty plans were in place which were designed to reduce the possibility that anything untoward would occur. Nevertheless, Kolby was permitted to ride on a school bus with younger children in a relatively unsupervised environment. It will be for a jury to determine whether this constituted negligence.
The Court also rejects Metro’s contention that its actions were not a substantialafctor in the alleged assault. In this regard, Metro claims that it was acting at Plaintiff’s request when it placed Gilberto on a sm aller bus. This assertion, of c ourse, wholly ignores the fa ct that Ms. Lopez repeatedly requested that Gilberto be on a bus with a m onitor and that Ms. Lopez could not unilaterally determine on which bus Gilberto would ride. It also ignores the knowledge Metro had of Kolby’s prior behavior and its decision to allow Kolby and Gilberto to ride on the same bus.
In light of the foregoing, the cross Moti ons for Sum mary Judgment on t he claims of negligence asserted against Defendants Metro and Genesis will be denied. B. Motion to Remand TGTLA Claim
Plaintiff moves to remand her TGTLA claim against Metro on the grounds that the only proper venue for such a claimis the state circuit court under T.C.A. § 29-20-307 which provides that the state circuit courts shall have “exclusive oirginal jurisdiction” over TGTLA claims. In support of her position, Plaintiff relies upon Gregory v. Shelby County, Tenn., 220 F.3d 433, 446 (6th Cir. 2000).
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In Gregory, the Sixth Circuit noted that 28 U.S.C. § 1367(c) provides that a district court may decline to exercise jurisdiction over a claim in exceptional circum stances where there are “compelling reasons for declining jurisdiction.” The court went on to reason that because T.C.A. § 29-20-307 expresses “a clear preference that TGTLA claims be handled by its own state courts, . . . [t]his unequivocal preference of the Tenness ee legislature is an exceptional circum stance for declining jurisdiction.” Gregory, 260 F.3d at 466.
Some courts have woodenly applied Gregory and dismissed supplemental TGTLA claims on the grounds that the only venue for such claims is the state circuit court. See, Payne v. Tipton County, Tenn., 2006 WL 1967046 at *2 (W.D. Tenn. 2006). Other courts have read Gregory as allowing, but not requiring, dismissal of TGTLA claims and observe thatfederal district courts can, and commonly do, hear TGTLA claims under supplemental jurisdiction. See, Johnson v. City of Memphis, 2006 WL 2546544 at * 2 (W.D. Tenn. 2006).10
The district court in Brown v. City of Memphis, 440 F.Supp.2d 868, 878 (W.D. Tenn. 2006) adopted the latter approach. In doing so, the court observed t hat “[s]upplemental jurisdiction is grounded implicitly in Article III of the Constitution, and, explicitly, in federal statutory law.” Id. at 678. Given these underpinnings, state legislat ures “are powerless to im pose jurisdictional constraints upon the federal judiciary,” and, t herefore “[w]hatever the intent of the Tennessee legislature may have been in enacting the Govern mental Tort Liability Act, the authority of the federal courts to appropriately exercise jurisdiction over supplem ental state law matters remains
10In an unpublished opinion dealing with an interolcutory appeal, the Sixth Circuit noted that Gregory could be read as requiring that a district court decline to exercise suppleemntal jurisdiction over a TGTLA claim given the provisions in T.C.A. § 29-20-307, but that Gr egory has also been read as indicating that the Tennessee Code provision “merely factors into, but does not control, a federal district court’s discretionary decision whether to exercise supplemental jurisdiction over such claims.” Ontha v. Rutherford County, Tennessee , 222 Fed. Appx. 498, 598 (6 th Cir. 2007). The Sixth Circuit in Ontha declined to reach the issue.
43

undiminished.” Id. The court then went on to hold that dismissal of the TGTLA claim s would unnecessarily waste judicial and litigant resources. Id .; see, Johnson, 2006 WL 2546544 at *2 (refusing to remand TGTLA claimbecause claims arose out of common nucleus of facts and remand “would waste the resources of the state and federal court and the litigants”).
This Court agrees with the rationale in Brown and finds that compelling circumstances do not exist so as to support a remand of the TGTLA claim against Metro. This case has been pending since August 2, 2007. The parties have engaged inextensive discovery which has been completed, and have filed lengthy dispositive Motions. Plaintiff did not file her Motion to Remand until April 1, 2009 when the trial was scheduled to commence on May 26, 2009. It would be a colossal waste of time and resources for all involved were the Coutrto remand a claim which arises out of the same facts as the claims which remain pending before this Court. Accordingly, the Court will exercise its discretion by denying the Motion to Remand Plaintiff’s TGTLA claim. C. Motion for Review
The United States seeks review of a January 15, 2009 Order (Docket Entry No. 161) in which the Magistrate Judge denied Metro’s motion to quash a subpoena duces tecum issued by the United States which sought the production of documents pertaining to complaints or investigations of sexual misconduct harassment, or assault on Me tro school buses. In doing so, the Magistrate Judge permitted Metro to redact “the names of any reporter of sexual abuse, the victim of alleged sexual abuse and any other personal, identifying inform ation of the repor ters, victims and other persons from any documents produced to the United States.” I d. at 11. The United States seeks review of the ruling insofar as it allowed Metroto produce documents which redacted the names and identifying information of alleged victims, perpetrators, and other individuals. The United States argues that its status as a law enforcement agency under T.C.A. § 37-1-612(c)(7) entitles it to access
44

such information, and that, given the redaction, it would be difficult for the United States to use the subpoenaed documents for the purpose of obtaining appropriate injunctive relief.
The Motion for Review is brought under Rule 72(a)of the Federal Rules of Civil Procedure and Rule 9(a)(1) of the Local Rules for Magistrate Judge Proceedings, both of which provide that a Magistrate Judge’s non-dispositive Order m ay be modified or set aside only if it i s clearly erroneous or contrary to law. The United States has not met its burden.
In a thorough and thoughtful Order, Magistrate Judge Griffin specifically found “that the United States qualifies for the law enforcement exception of section 37-1-612(c)(7)” (Docket Entry No. 161 at 7), but also determined that the documents to be turned over could be redacted to exclude the names of the alleged victim s and perpetrators. In doing so, Magistra te Judge Griffin relied heavily on Farley v. Farley, 952 F.Supp. 1232, 1237 (M.D. Tenn. 1997), wherein Judge Wiseman adopted a deferential standard aimed to balance the competing state privacy interests and the federal civil rights objectives in order “to ensure vindica tion of the param ount federal interes t with as minimal intrusion on the state interests as is consistent with [a] federal claim.” While Magistrate Judge Griffin observe d that this case “m ay present an even stronger case for disclosure of information otherwise protected because the requesting party is not an individual plaintiff . . ., but rather the United States Department of Justice[,]” she concluded that, as in Farley, intrusion on the state’s interest codified in T.C.A. 37-1-612 could be minimized through the production of redacted records.
Having fully reviewed the m atter, the Court finds no error in Magistrate Judge Gr iffin’s decision, let alone clear error or a decision that icsontrary to law. While the United States generally complains that it will not be able to fully pre ss its claim for injunctive relief absent receipt of unredacted copies, it offers no compelling arguments as to how that would be so. It appears that
45

even the redacted documents show the number, nature, and circumstances of the incidents, including the name of the schools, the programs involved, and the types of school buses where incidents arose. As Metro points out, insofar as the United St ates wants to call victim s and witnesses of sexual harassment at trial, this raises numerous concerns, such as the tender age of some of those witnesses, the specter of “mini-trials,” and the potential for further ha rm to the victims in having to recount their ordeal, even though the Court does not resolv e such concerns now. Given this record, the Motion for Review will be denied.
III. CONCLUSION On the basis of the foregoing, the Motions for Summary Judgment filed by the Plaintiff (Docket Entry No. 183) and the Plaintiff-Intervenor (Docket Entry No. 164) will be denied. The Motion for Summary Judgment filed by Defendant Genesis (Docket Entry No. 169) will be granted with respect to Plaintiff’s Section 1983, the Americans With Disabilities Act, and the Rehabilitation Act claims, but denied with respect to Plaintiff’s negligence and Title IX claims. The Motions for Summary Judgment filed by Defendant Metro (Docket Entry No. 174 and 178) will be granted with respect to Plaintiff’s retaliat ion, Equal Protection, failure to train, ADA, and Rehabilitation Act claims, but denied with respect to Plaintiff’sTGTLA and state-created danger claims under Section 1983 and Plaintiff and Plaintiff-Intervenor’s Title IX claims. The Motions for Oral Argument (Docket Entry Nos. 218 and 225) and the Motions to Strike (Docket Entry Nos. 257, 259 and 266) will be denied.The Motions for Leave to File Excess Pages (Docket Entry Nos. 204 and 246) and the Motionsfor Leave to File Reply Memorandums (Docket Entry Nos. 273 and 276) will be granted.
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The Motion for Review (Docket Entry No. 279) ifled by Plaintiff-Intervenor will be denied. Finally, the Motion to Remand to State Court Plani tiff’s Claims Under the Tennessee Governmental Tort Liability Act (Docket Entry No. 280) will also be denied.
An appropriate Order will be entered. ____________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
47

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY,

)

as next friend and trustee of THE

)

GILBERTO KELLY LOPEZ

)

IRREVOCABLE TRUST,

)

NO.3:07-CV-799

)

Plaintiff,

)

JURY DEMAND

)

UNITED STATES OF AMERICA,

)

Judge Echols

)

Intervening Plaintiff,

)

Magistrate Judge Griffin

)

v.

)

)

METROPOLITAN GOVERNMENT

)

OF NASHVILLE AND DAVIDSON

)

COUNTY,

)

)

and

)

)

GENESIS LEARNING CENTERS,

)

)

Defendants.

)

ORDER

This cause came on to be heard on Monday, February 1, 2010 upon petition by

Cumberland Trust and Investment Company on behalf of Gilberto Lopez to approve a

proposed settlement between the Metropolitan Government and Plaintiff. Upon a review of

the petition, statement of counsel, testimony of Mr. John Barringer of Cumberland Trust

Investment Company, and the entire record in this cause, the Court finds as follows:

1.

The Court finds that a settlement of this case by a payment by and on behalf

of the Metropolitan Government in the amount of $1,475,000.00 is manifestly in the best

interest of the child. The Court further finds, and agrees with the mother of the child, Mrs.

Kimberly Lopez, that it is the best interest of Gilberto as authorized by T.C.A. § 34-1-121 and

Case 3:07-cv-00799 Document 517 Filed 02/09/10 Page 1 of 4 PageID #: 10283

42 U.S.C. § 1396 (P)(d)4(a)4 that the net funds provided to Gilbert be paid into and governed

by the terms of the Special Needs Trust which is attached hereto as Exhibit 1. At the Court's request

Cumberland Trust has furnished its fee schedule for the fudiciary and administrative services to be

performed in this case, which is attached hereto as Exhibit 2, and shall also be attached as

Exhibit 1 to the Special Needs Trust document. 2. The Court further fmds that the flrm of Blackburn and McCune, PLLC has

rendered substantial and valuable assistance to the minor and that the agreed upon fee of one-

third of the amount recovered is fair, reasonable, and likewise in the best interest of the child.

3.

The Court further flnds that the expenses submitted by Plaintiff's counsel in

the amount of $85,618.13 are reasonable and were advanced by the law flrm in furtherance of

the prosecution of this case and in the best interest of the child and should therefore be

approved.

4. The Court further fmds that the subrogation claim settlement with Blue

Cross/Blue Shield in the amount of $2,825.18 and with IVIagellan Health Services in an

amount not greater than $136,714 is reasonable and should be paid from the proceeds of

settlement. Plaintiff's counsel shall hold said amount in trust and disburse the amount flnally

agreed to by Magellan and pay the balance, if any to Consolidated Trust.

5.

Finally, the Court flnds that as a consequence of the effort, the time spent

away from work, the burden of travel and care for the minor child, allocation of $25,000.00 of

the settlement shall appropriately be paid to the mother, Mrs. Kimberly Lopez.

Case 3:07-cv-00799 Document 517 Filed 02/09/10 Page 2 of 4 PageID #: 10284
2

IT IS THEREFORE ORDERED that the proposed settlement is approved by the Court as in the best interest of the minor and that the funds should be disbursed from the trust account of Blackburn and McCune, PLLC, as follows:

To Cumberland Trust:
To Blackburn & McCune, PLLC: Attorneys fees: Advanced Expenses: To Blue Cross/Blue Shield of Tennessee

$ 733,175.40 Together with any savings by negotiation with
Megallan
$491,666.67 $ 85,018.13
$2,825.80

To Magellan Health Services To Mrs. Kimberly Lopez

$136,714.00 Minus any further
compromise if such claim.
$25,000.00

This matter having been approved by the Court, this case is dismissed with prejudice as between Cumberland Trust and Investment Company as next friend and Trustee of Gilberto K.elley Lopez as against the Metropolitan Government of Nashville and Davidson County, Tennessee.
a.fot..
THEHONORABL~ This ----jj~~ff----- day of February, 2010, ~~ United States District Judge

3
Case 3:07-cv-00799 Document 517 Filed 02/09/10 Page 3 of 4 PageID #: 10285

Respectfully submitted, BLACKBURN & McCUNE, PLLC

sf W. Gary Blackburn \\1. Gary Blackburn (#3484) John Ray Clemmons (#25907) 101 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385 Email: gblackburn@bmclawyers.com jclemmons@bmclawyers.com Counsel for Plaintiff
CERTIFICATE OF SERVICE

I hereby certify that the original of the foregoing "Proposed Order"" has been served electronically via the Court's online filing system and via U.S. Mail, first-class postage prepaid, to the following:

Jonathan Fischbach Luke A. McLaurin U.S. Department ofJustice 950 Pennsylvania Ave, NW Patrick Henry Building, Suite 4300 Washington, D.C. 20530

Benjamin M. Rose, Esq. James I<:. Simms, IV, Esq. Cornelius & Collins, LLP 511 Union Street Suite 1500 Nashville, TN 37219-0695

R. Dale Bay Jason Bergeron Lewis, I<ing, I<rieg & Waldrop, P.C. 201 Fourth Avenue North, Suite 1500 Nashville, TN 37219

Thomas F. Ivlink, II I<:eith \\1. Blair Taylor, Pigue, Marchetti & Mink, PLLC 2908 Poston Avenue Nashville, TN 37203-1312

on this the 8th day of February, 2010.

sf W. Gary Blackburn W. Gary Blackburn

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THE GILBERTO KELLY LOPEZ IRREVOCABLE TRUST
LARRY R. BRAY WISEMAN BRAY PLLC
1665 BONNIE LANE SUITE 106
MEMPHIS, TENNESSEE 38016
EXHIBIT 1
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The Gilberto Kelly Lopez Irrevocable Trust Table of Contents

Article One Establishing the Gilberto Kelly Lopez Irrevocable Trust.......... 1-1

Section 1.01 Section 1.02
Section 1.03 Section 1.04 Section 1.05 Section 1.06
Section 1.07 Section 1.08

IdentifYing the Trust .................................................................... 1-1 Reliance by Third Parties on Affidavit or Certification of Trust ............................................................................................. 1-1 Statement of Intent ....................................................................... 1-2 Eligibility of Benefits................................................................... 1-3 An Irrevocable Trust .................................................................... 1-3 Reformation or Amendment to Comply with Federal or State Benefit Laws ....................................................................... 1-3 Initial Funding and Funding of Settlement Proceeds................... 1-4 Grantor Trust................................................................................ 1-4

Article Two Trust Purpose ..............................................................................2-1

Section 2.01 Section 2.02 Section 2.03

Prllnary Intent .............................................................................. 2-1 PUIpose of the Trust ..................................................................... 2-1 ResidentiaL ................................................................................... 2-2

Article Three Trustee Succession and Trust Protector Provisions ............. 3-1

Section 3.01 Section 3.02 Section 3.03 Section 3.04 Section 3.05 Section 3.06 Section 3.07 Section 3.08

Resignation of a Trustee .............................................................. 3-1 Removal of Trustees .................................................................... 3-1 Replacement of Trustees .............................................................. 3-1 COIporate Fiduciaries ................................................................... 3-1 Incapacity of a Trustee................................................................. 3-2 Appointment of Special Trustee .................................................. 3-2 Provisions Regarding Successor Trustees ................................... 3-2 Provisions for Trust Protector ...................................................... 3-2

Article Four Definition of Gilberto Kelly Lopez's Special Needs .................4-1

Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05

Special Needs the Trustee Shall Consider ................................... 4-1 Examples of Medical Needs ........................................................ 4-1 Examples of Residential Needs ................................................... 4-2 Examples of Social Needs ........................................................... 4-2 Examples of Education and Vocational Training Needs ............. 4-2

Article Five Distributions ................................................................................5-1

Section 5.01

Distributions of Income and Principal ......................................... 5-1

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Section 5.02 Section 5.03 Section 5.04 Section 5.05 Section 5.06 Section 5.07 Section 5.08 Section 5.09

Purpose to Supplement Public Benefits ....................................... 5-1 No Seeking of Order to Distribute ............................................... 5-2 Commingling of Property Prohibited........................................... 5-2 Trust Distributions ....................................................................... 5-3 Residential Needs............................................................. '" ......... 5-3 Compensation for Attendant Care Services ................................. 5-4 Employment and Compensation of Others .................................. 5-4 Purchases of Personal Property.................................................... 5-4

Article Six Provisions in the Event of Changed Circumstances..................6-1

Section 6.01 Section 6.02

Discretionary Distributions if Existence of Trust Renders Gilberto Kelly Lopez Ineligible for Benefits ............................... 6-1 Early Termination Based on Cost ................................................ 6-1

Article Seven Administration of the Trust upon the Death of Gilberto Kelly Lopez ....................................................................... 7-1

Section 7.01 Section 7.02 Section 7.03 Section 7.04

Payment of Expenses and Taxes .................................................. 7-1 State Action to Recover Benefits ................................................. 7-1 Distribution of Remaining Trust Property ................................... 7-1 Distribution of the Gilberto Kelly Lopez Family Trust. .............. 7-2

Article Eight Remote Contingent Beneficiaries.............................................8-1

Article Nine Administration of Trusts for Underage and Incapacitated Beneficiaries ....................................................................9..1

Section 9.01 Section 9.02

Distributions for Minor and Incapacitated Beneficiaries ............. 9-1 Distribution Methods ................................................................... 9-1

Article Ten Trust Administration ..................................................................10-1

Section 10.01 Section 10.02 Section 10.03 Section 10.04 Section 10.05 Section 10.06 Section 10.07 Section 10.08 Section 10.09 Section 10.10 Section 10.11 Section 10.12 Section 10.13 Section 10.14

Distributions to Beneficiaries .................................................... 10-1 No Court Proceedings ................................................................ 10-1 No Bond ..................................................................................... 10-1 Trustee Compensation ............................................................... 10-1 Employment of Professionals .................................................... 10-2 Exercise of Testamentary Power of Appointment ..................... 10-2 Trust Accounting ....................................................................... 10-3 Action of Trustees; Disclaimer .................................................. 10-3 Delegation of Trustee Authority; Power of Attorney ................ 10-4 Power to Terminate Trusts ......................................................... 10-4 Merger of Corporate Fiduciary .................................................. 10-4 Beneficiary's Status ................................................................... 10-5 Discharge of Third Persons........................................................ 10-5 Certificate by Trustee................................................................. 10-5

11

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Article Eleven Trustee's Powers...................................................................11-1

Section 11.01 Section 11.02 Section 11.03
Section 11.04 Section 11.05 Section 11.06 Section 11.07 Section 11.08

Introduction to Trustee's Powers ............................................... 11-1 Rights of Persons Dealing with the Trustee............................... 11-1 Powers to Be Exercised in the Best Interests of the Beneficiaries .............................................................................. 11-1 The Trustee's Investment Powers .............................................. 11-2 The Trustee's Administrative Powers ........................................ 11-8 Limitation on Trustee's Powers ............................................... 11-12 Investment Manager................................................................. 11-14 Special Provisions for Cumberland Trust & Investment Company .................................................................................. 11-15

Article Twelve General Provisions ...............................................................12-1

Section 12.01 Section 12.02 Section 12.03 Section 12.04 Section 12.05 Section 12.06

Maximum Term for Trusts......................................................... 12-1 Spendthrift Provision ................................................................. 12-1 Contest Provision ....................................................................... 12-2 Changing the State of Administration........................................ 12-2 Definitions.................................................................................. 12-2 General Provisions ..................................................................... 12-7

iii
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The Gilberto Kelly Lopez Irrevocable Trust

Article One Establishing the Gilberto Kelly Lopez Irrevocable Trust

, This irrevocable trust is mad~xecuted and delivered in the County of Davidson, State

of Tennessee, on the I~

day of .::rv~

2009, by and between

KlMBERLY DENISE LOPEZ, natural mother and legal guardian of GILBERTO

KELLY LOPEZ, the Settlor, and CUMBERLAND TRUST & INVESTMENT

COMPANY, the Trustee, as confirmed and approved by the United States District Court

for the Middle District of Tennessee, by and through the HONORABLE JUDGE

ROBERT L. ECHOLS for a proceeding in the United States District Court for the Middle

District of Tennessee, Docket Number 3:07-cv-799.

The establishment of this trust is authorized by 42 U.S.C. §1396p(d)(4)(A) and Tennessee Code Annotated §34-1-121 in order to preserve GILBERTO KELLY LOPEZ's eligibility for assistance under state plans.

This irrevocable trust is also established pursuant to the Tennessee Investment Services Act of 2007, of Public Chapter No. 144, House Bill No. 1351 of the Tennessee General Assembly as codified in Tennessee Code Annotated §35-16-101 through §35-16-112, as amended.

All references to "the Trust" or "Trust" in this document, unless otherwise stated, shall refer to this irrevocable Trust and the trusts created in it. All references to "Trustee" shall refer to the initial Trustee or its successor or successors in trust.

Section 1.01 Identifying the Trust
The irrevocable Trust shall be known as the:
GILBERTO KELLY LOPEZ IRREVOCABLE TRUST, dated __~---.;V;;....I{_ l_--L._(_2-_ __
_ _,2009, CUMBERLAND TRUST & INVESTMENT COMPANY, Trustee.

Section 1.02 Reliance by Third Parties on Affidavit or Certification of Trust
From time to time, documentation will be required by third parties to verify the existence of this agreement, or particular provisions of it, such as the name or names of the Trustee then serving, or the powers held by the Trustee. To protect the confidentiality of this agreement yet provide the required verification, the Trustee may use an Affidavit or Certification of Trust that (1) identifies the Trust and the current Trustee(s); (2) sets forth
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the powers and authority of the Trustee to transact business on behalf of the Trust; and (3) may include pertinent pages from the Trust, such as title or signature pages.
All third parties may rely upon the Affidavit or Certification of Trust signed by the Trustee regarding the representations contained in the Affidavit or Certification of Trust. All third parties relying upon the Trustee's Affidavit shall be exonerated from any liability for so relying.
A written statement of any initial Trustee or successor Trustee at any time as to any matters relating to the Trust, including the authority of the Trustee, shall always be conclusive evidence of the matters contained in the written statement and may always be relied upon by any party dealing in good faith with the Trustee in reliance on the information contained in the Affidavit.
Section 1.03 Statement of Intent
This Trust is being created as a means by which trust assets may be held for the benefit of GILBERTO KELLY LOPEZ on the tenus and conditions set forth in this instrument. The principal purpose and intent of all parties of this Trust agreement is to provide a system for fiscal management, administration and disbursement, advocacy, care and emotional guidance for GILBERTO KELLY LOPEZ. All provisions of this Trust shall be construed in such a manner as best to effect these intents.
The beneficiary of this Trust is GILBERTO KELLY LOPEZ, born on October 20,1997. The social security number of GILBERTO KELLY LOPEZ is GILBERTa KELLY LOPEZ is now and will continue to be for the foreseeable future a "disabled" individual, as defined in Title XVI of the Social Security Act, 42 U.S.C. § 1382c, and 20 C.P.R. § 416.901 et seq. As a result of the nature and degree of his disability, GILBERTO KELLY LOPEZ is not and may not in the foreseeable future be capable of managing the funds as provided in the settlement agreement referred to in this Article.
The severity of GILBERTO KELLY LOPEZ's disability will cause him to require continuing support, assistance and supervision for the rest of his life. The funds provided by this settlement may be inadequate to provide for all such care and support.
The trust is created pursuant to the Tennessee Investment Services Act of 2009 (the Act) with the intent that assets transferred to the trust be held for the benefit of GILBERTa KELLY LOPEZ on the terms and conditions set forth in this agreement. All provisions of this agreement shall be construed so as to comply with the Act, and the provisions of the Act shall control if those provisions conflict with the provisions of this agreement.
GILBERTO KELLY LOPEZ will be the sole beneficiary of this Trust during his lifetime.
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Section 1.04 Eligibility of Benefits
This Trust Agreement shall be construed so as to maintain the eligibility of GILBERTO KELLY LOPEZ to receive benefits under state and federal assistance programs as permitted under 42 U.S.C. §1396p(d)(4)(A) and other similar programs or laws. Interpretation of this Trust Agreement shall be in accordance with 42 U.S.C. §1396p(d)(4) as regards to the beneficiary's eligibility for asset sensitive local, state and federal benefits and programs. Inconsistent local and state laws and regulations are pre· empted by the federal statute. The funds from the settlement referred to in this Article are placed in this Trust subject to its terms and conditions. The funds shall not be deemed available to GILBERTa KELLY LOPEZ except as provided herein. The assets held in this Trust should have no impact on the beneficiary's eligibility for asset sensitive government benefits, specifically including but not limited to, Supplemental Security Income (SSI) and Medicaid under the Social Security Act.
The Trust beneficiary meets the disability criteria established for eligibility for SSI benefits. The Court has found that the beneficiary is likely to have special needs that will not be met without the Trust. The amounts going to fund the Trust are reasonably necessary to meet the special needs of the beneficiary.
Section 1.05 An Irrevocable Trust
This Trust is irrevocable, and no person shall have the power to alter, amend, revoke, or terminate this Trust, either in whole or in part; provided however, that the Trustee, as appropriate, shall have the authority to amend the terms as provided below. However, the Trustee is authorized to· modify or amend the provisions of this agreement to ensure that this agreement conforms to the Act. The Trustee may rely upon the advice of counsel in taking any action pursuant to the authority given to the Trustee. The Trustee shall be without liability for acting pursuant to this Section.
Section 1.06 Reformation or Amendment to Comply with Federal or State Benefit Laws
The Trustee shall have the power and duty, in its sole and absolute discretion, to amend or reform this agreement in any manner that is required for the sole purpose of ensuring that it qualifies and conforms to applicable law that governs exclusion of resources for Federal or State (including any subdivision thereof) benefits.
Under no circumstances shall GILBERTO KELLY LOPEZ be able to amend, modify or revoke this Trust through court order, even if allowed to do so under state law, if the result is that he gains direct access to the trust principal or income. The primary beneficiary does not have the power to assign, encumber, direct, distribute or authorize distributions from this Trust.
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The Trustee shall confer with legal counsel and obtain a legal opinion to the effect it is necessary to amend or refonn this Trust in order to ensure that the exercise of the power granted in this section does in fact confonn to applicable law that governs exclusion of resources for Federal or State (including any subdivision thereof) benefits programs. If the Trustee refOIms or amends this Trust under this section without conferring with legal counsel and obtaining a legal opinion, the Trustee is acting with gross negligence.
Section 1.07 Initial Funding and Funding of Settlement Proceeds
The Trust will be initially funded with $1 and such other property as shall be listed on Schedule A. Schedule A shall be made a part of and shall be incorporated by reference in this agreement.
The Trust will be funded with future additional funds to be made payable to the Trustee for the sole benefit of GILBERTa KELLY LOPEZ. The Court has ordered that funds be paid into the Trust without the appointment of a guardian or conservator, or the transfer of ownership of the funds to GILBERTa KELLY LOPEZ. The Court acts pursuant to its authority as provided by federal law at 42 U.S.C. § 1396 p(d)(4), the laws of the state of Tennessee in Section 34-1-121 of Tennessee Code Annotated and under the inherent powers of the Court as a Court of general jurisdiction. The funds at no time shall be available to GILBERTa KELLY LOPEZ or be placed in his possession, except as otherwise provided in this agreement. This Trust is established at the specific direction of the Court as is further authorized by 20 C.F.R. § 416. 1246(e) and the Social Security Programs Operations Manual System (POMS) Paragraph SI 01120.200. The assets directed to this Trust by the Court shall not be deemed to have been or be available to the beneficiary.
Section 1.08 Grantor Trust
While GILBERTa KELLY LOPEZ is alive, the Trust is a Grantor Trust as that term is defined under the Internal Revenue Code. As provided in Revenue Ruling 83-25, 1983-1 CB 116, GILBERTa KELLY LOPEZ will be treated as owner of the Trust for income tax purposes only.
During the lifetime of GILBERTa KELLY LOPEZ, the Trustee may pay the relevant taxing authority, if possible, or reimburse GILBERTa KELLY LOPEZ, his personal representative or any other person for the payment of any income taxes imposed upon GILBERTa KELLY LOPEZ with respect to income or gains of the Trust.
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Article Two Trust Purpose
Section 2.01 Primary Intent
This Special Needs Trust contains instructions for providing for the supplemental special needs of GILBERTa KELLY LOPEZ. While all actions of the Trustee shall be in its sole and absolute discretion, all parties to this Trust agreement should be mindful that it is desirable that GILBERTa KELLY LOPEZ live as independently, productively, and as happily as possible, consistent with reasonable protection of his health and welfare.
Section 2.02 Purpose of the Trust
The express purpose of this Trust is to provide for GILBERTa KELLY LOPEZ extra and supplemental care, maintenance, support and education in addition to and over and above the benefits GILBERTa KELLY LOPEZ otherwise receives as a result of his handicap or disability from any local, state or federal government, or from any other private agencies, any of which provide services or benefits to handicapped persons. It is the express purpose of this Trust to use the trust estate only to supplement other benefits received by GILBERTa KELLY LOPEZ. The Trustee may provide such resources and experiences as will contribute to and make GILBERTa KELLY LOPEZ's life as pleasant, comfortable and happy as feasible. Nothing herein shall preclude the Trustee from purchasing those services and items which promote his happiness, welfare and development, including, but not limited to, vacation and recreation trips away from places of residence, expenses for traveling companions if requested or necessary, entertainment expenses, supplemental medical and dental expenses, social services expenses, and transportation costs. The Trust is to be considered as a discretionary, and not a basic support, trust. The trust estate shall not be used to provide basic food, clothing and shelter nor be available to GILBERTa KELLY LOPEZ for conversion for such items, unless all local, state and federal benefits to which he is entitled as a result of disability have first been applied for those purposes.
The intent of this Trust is to supplement any benefits received (or for which the beneficiary may be eligible) through or from various governmental assistance programs and not to supplant any such benefits, unless the Trustee, in its sole and absolute discretion, determines that the government assistance is inadequate. All actions of the Trustee shall be directed toward carrying out this intent and the discretion granted the Trustee under this agreement to carry out this intent is absolute. Under no circumstances shall GILBERTa KELLY LOPEZ be considered to have access to principal or income of the Trust.
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Section 2.03 Residential The primary objective of this Trust is that GILBERTa KELLY LOPEZ lives as independently as possible in a safe environment. It is desirable that GILBERTa KELLY LOPEZ live in a private residence with personal, professional and financial assistance as needed. The Trust may support GILBERTa KELLY LOPEZ's living situation to the maximum extent possible without supplanting public benefits. It is preferable that GILBERTa KELLY LOPEZ receives support as necessary to avoid residing in an institutional setting.
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Article Three Trustee Succession and Trust Protector Provisions
Section 3.01 Resignation of a Trustee Any Trustee may resign by giving thirty days' written notice to the legal representative of the primary beneficiary. If the primary beneficiary is not living, the notice shall be delivered to the Trustees, if any, and to all of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from any trust created under this agreement. If a beneficiary is a minor or is legally incapacitated, the notice shall be delivered to that beneficiary's guardian or other legal representative.
Section 3.02 Removal of Trustees Any Trustee may be removed by a court of competent jurisdiction for any reason. Notice of removal shall be in writing and delivered to the Trustee being removed and to any other Trustee then serving. This shall not limit the authority of a Trust Protector to remove a Trustee under the provisions of Section 3.08(f).
Section 3.03 Replacement of Trustees If the office of Trustee of a trust created under this agreement is vacant and no designated Trustee is able and willing to act, the Trust Protector shall appoint a corporate fiduciary that is a Qualified Trustee and that is not related or subordinate to GILBERTO KELLY LOPEZ within the meaning of Section 672(c) of the Internal Revenue Code to serve as successor Trustee. If the Trust Protector is unable or unwilling to act, a court of competent jurisdiction, ex parte, shall designate a corporate fiduciary as a Trustee. The court that designates the successor Trustee shall not acquire any jurisdiction over any trust created under this agreement, except to the extent necessary to name a corporate fiduciary as a successor Trustee.
Section 3.04 Corporate Fiduciaries Any corporate fiduciary serving under this agreement as a Trustee must be a bank, trust company, or public charity that is qualified to act as a fiduciary under applicable federal or state law and must not be related or subordinate to any beneficiary within the meaning of Section 672(c) of the Internal Revenue Code.
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Section 3.05 Incapacity of a Trustee
If any individual Trustee shall become incapacitated, it shall not be necessary for such Trustee to resign as Trustee. The written declaration of such incapacity by the Cotrustee, if any, or, if none, by the party designated to succeed such incapacitated Trustee, if made in good faith and if supported by a certificate of such incapacity by a physician who has examined the incapacitated Trustee, shall tenninate such trusteeship.
Section 3.06 Appointment of Special Trustee
If for any reason the Trustee is unwilling or unable to act as to any trust property of the Trust, or with respect to any provisions of this Agreement, the Trustee shall appoint, in writing, a corporate fiduciary or an individual who is not related or subordinate within the meaning of Section 672(c) of the Internal Revenue Code to act as a Special Trustee as to such property or with respect to such provisions, and may revoke any such appointment at will.
Each Special Trustee so acting shall exercise all fiduciary powers granted by this Agreement unless expressly limited by the delegating Trustee in the instrument appointing such Special Trustee. Any Special Trustee may resign at any time by delivering written notice to the Trustee to that effect.
Section 3.07 Provisions Regarding Successor Trustees
A successor Trustee may accept the account of its predecessor Trustee as a full and complete discharge of the predecessor Trustee.
No successor Trustee shall be personally liable for, or responsible for, any act or failure to act of any predecessor Trustee. No successor Trustee shall have any duty to review the records or acts of any predecessor Trustee.
Every successor Trustee shall have all of the rights and powers and be subject to all of the duties and restrictions given to the initial Trustee under this agreement.
Section 3.08 Provisions for Trust Protector
The function of the Trust Protector is to assist, if needed, in protecting the interests of the beneficiaries and in achieving the objectives as manifested by the other provisions of this agreement.
Any successor Trust Protector named or appointed under this Section shall be a corporate fiduciary or an individual who is not related or subordinate to any beneficiary within the meaning of Section 672(c) of the Internal Revenue Code.
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(a) Designation of Trust Protector
ALBERT M. ALEXANDER, JR. is appointed to serve as Trust Protector of each trust created under this agreement.
(b) Resignation of Trust Protector
A Trust Protector may resign by giving notice to the income beneficiaries of the trust and to the Trustee then serving.
Resignation shall take effect on the date set forth in the notice, which date shall not be earlier than thirty (30) days after the date of delivery of the notice of resignation, unless an earlier effective date shall be agreed to by a majority of the income beneficiaries of the trust. A resigning Trust Protector shall not be liable or responsible for the act of any successor Trust Protector.
(c) Authority of Trust Protector to Appoint a Successor Trust Protector
Any Trust Protector (including successors) shall have the right to appoint a successor Trust Protector in writing, such appointment to take effect upon the death, resignation or incapacity of the appointing Trust Protector. If a successor Trust Protector has been named, the appointment of a successor Trust Protector under this subsection shall take effect only if and when all Trust Protectors that are named fail to qualify or cease to act.
(d) Default of a Designated Trust Protector
If the office of Trust Protector for a trust is vacant and there is no effectively named successor Trust Protector, a majority of the income beneficiaries of the trust may appoint a successor Trust Protector for the trust.
(e) Rights of Successor Trust Protectors
Any successor Trust Protector shall have all of the authority of the Trust Protector by original appointment, but will not be responsible for the acts or omissions to act of its predecessor.
(f) Power to Remove and Appoint Trustees
The Trust Protector shall have the authority to remove any Trustee of a trust created under this agreement.
Whenever the office of Trustee of a trust is vacant and no successor Trustee is effectively named, the Trust Protector shall appoint a corporate fiduciary to serve as Trustee.
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A Trust Protector may not appoint itself as a Trustee and a Trust Protector may not simultaneously serve as both Trust Protector and Trustee.
(g) Good Faith Standard Imposed
The Trust Protector shall not be liable for any action taken in good faith. The Trust Protector shall not be liable for any act or omission to act and shall be reimbursed promptly for any costs incurred in defending or settling any claim brought against it in its capacity as Trust Protector unless it is conclusively established that the act or omission to act was motivated by an actual intent to hatm the beneficiaries of the trust or was an act of self-dealing for personal pecuniary benefit.
(h) Power to Amend or Modify the Trust Agreement
The Trust Protector may amend or modify this agreement as it applies to any trust to which the Trust Protector is serving as Trust Protector to:
Alter the administrative and investment powers of the Trustee;
Reflect tax or other legal changes that affect trust administration;
Correct ambiguities, including scrivener errors, that might otherwise require court construction or reformation;
Grant a beneficiary of any trust created under this agreement the unlimited and unrestricted testamentary general power to appoint to the creditors of the beneficiary's estate, or otherwise, any property remaining in trust with an inclusion ratio greater than zero, which in the absence of the exercise of a power of appointment would pass to a skip person for generation skipping transfer tax purposes.
An amendment made by the Trust Protector in good faith shall be conclusive on all persons interested in the trust and the Trust Protector shall not be liable for the consequences of any amendment or for not having amended the trust. An amendment to this agreement shall be made in a written instrument signed by the Trust Protector. The Trust Protector shall deliver a copy of the amendment to the income beneficiaries and the Trustee.
(i) Not a General Power of Appointment
Notwithstanding any other provision in this agreement to the contrary, the Trust Protector shall not participate in the exercise of a power or a
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discretion conferred under this agreement that would cause the Trust Protector to possess a general power of appointment within the meaning of Sections 2041 and 2514 of the Internal Revenue Code. Specifically, the Trust Protector may not use such powers for his or her personal benefit, or for the discharge of his or her financial obligations.
0) Release of Powers
The Trust Protector, acting on its own behalf and on behalf of all successor Trust Protectors, may at any time, by a written instrument delivered to the Trustee, irrevocably release, renounce, suspend or reduce any or all powers and discretions conferred on the Trust Protector by this agreement.
(k) No Duty to Monitor
The Trust Protector shall have no duty to monitor any trust created under this agreement in order to determine whether any of the powers and discretions conferred by this agreement on the Trust Protector should be exercised. Further, the Trust Protector shall have no duty to keep informed as to the acts or omissions of others or to take any action to prevent or minimize loss. Any exercise or non-exercise of the powers and discretions granted to the Trust Protector shall be in the sole and absolute discretion of the Trust Protector, and shall be binding and conclusive on all persons. The Trust Protector is not required to exercise any power or discretion granted under this agreement.
(I) Compensation
Any Trust Protector serving hereunder shall be entitled to receive (but not required to accept) reasonable compensation for services as determined by the Trustee. The Trust Protector shall be entitled to reimbursement for all expenses incurred in the performance of its duties as Trust Protector, including travel expenses.
Serving in the capacity of Trust Protector shall not prevent the Trust Protector from also providing legal, investment or accounting services on behalf of the trust or the trust beneficiaries. If the Trust Protector is providing legal services, the Trust Protector is entitled to charge its normal and customary fees for services rendered or to be rendered and in addition is entitled to be compensated for its services as Trust Protector.
(m) Right to Examine
The books and records of each trust created under this agreement, including all documentation, inventories and accountings, shall be open and available for inspection by the Trust Protector at all reasonable times.
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Article Four Definition of Gilberte Kelly Lopez's Special Needs
Section 4.01 Special Needs the Trustee Shall Consider
As used in this document, "special needs" refers to the requisites for maintaining GILBERTO KELLY LOPEZ's comfort, and happiness when, in the discretion of the Trustee, such requisites are not being provided by any public agency, office or department of the State of Tennessee, or of any other state, or of the United States or by any private agency. GILBERTO KELLY LOPEZ may have basic needs such as medical and dental care, attendant care support services, supplemental health care and related therapeutic care for which governmental assistance programs may not otherwise provide.
The intent of this Trust is to create a supplemental and emergency fund for GILBERTO KELLY LOPEZ's benefit and not to displace assistance that may otherwise be available to him through or from various governmental assistance programs. The Trustee is directed to consider these basic living needs when making distributions.
Section 4.02 Examples of Medical Needs
GILBERTO KELLY LOPEZ may have basic needs such as medical and dental care, psychological and psychiatric support services, including psychotherapy, attendant support services, supplemental health care, plastic surgery, and other care for which public benefit assistance programs may not provide. "Special needs" shall include, but not be limited to, occupational therapy, physical therapy and speech therapy not covered by public benefits, medical and dental expenses, annual independent checkups, equipment, programs of training, education, treatment and rehabilitation, eye glasses, and essential supplementary dietary needs, when appropriate.
Regular medical checkups and general preventive healthcare including annual vision and semi-annual dental checks should be encouraged and provided as part of his "special needs." GILBERTO KELLY LOPEZ should be periodically evaluated by medical professionals to ensure that GILBERTO KELLY LOPEZ maintains the best possible health and well-being. This should include annual behavioral evaluations, as appropriate, as well as annual exams by his primary care physician. The Trustee may authorize expenditures not covered by public benefits, related to identifying, diagnosing and treating any condition GILBERTO KELLY LOPEZ may develop, so that he can maintain optimal overall functioning and minimize the need for hospitalization whenever possible.
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Section 4.03 Examples of Residential Needs The Trustee should consider distributions for such things as residential expenses beyond basic rent costs, including furnishings, utilities (other than gas, electricity, garbage collection and water), telephone, Internet and television service.
Section 4.04 Examples of Social Needs "Special needs" may include specialized classes, camping trips, vacations, athletic contests and events, movies, cultural events, payments for a companion or attendant, and other items to enhance GILBERTO KELLY LOPEZ's self-esteem or situation. "Special needs" may also include equipment to enhance GILBERTO KELLY LOPEZ's participation in such activities, for example, electronic equipment, such as radios, television sets, compact discs and computer equipment; camping equipment, books, video and audio tapes and athletic equipment. In addition, the Trustee should consider distributions for such things as transportation (including vehicle purchase and maintenance); companions for travel and other expenses related to leisure, recreation, and cultural enrichment; personal care, exercise classes or equipment, and membership fees for clubs and associations.
Section 4.05 Examples of Education and Vocational Training Needs "Special needs" may also include, but not be limited to vocational and educational training or services not provided by any public benefits or local, state, or federal governmental agencies.
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Article Five Distributions
Section 5.01 Distributions of Income and Principal
The Trustee shall be responsible for detennining what discretionary distributions shall be made from this Trust. The Trustee may distribute discretionary amounts of net income and principal to or for the benefit of GILBERTa KELLY LOPEZ for those special needs not otherwise provided by governmental financial assistance and benefits, or by the providers of services, in amounts which will not cause GILBERTa KELLY LOPEZ to be ineligible for governmental financial assistance benefits, in the event GILBERTa KELLY LOPEZ is receiving such benefits. Any undistributed income shall be added to principal.
Section 5.02 Purpose to Supplement Public Benefits
The intent of this Trust is to supplement any benefits received (or for which the beneficiary may be eligible) through or from various governmental assistance programs and not to supplant any such benefits. All actions of the Trustee shall be directed toward carrying out this intent and the discretion granted the Trustee under this agreelnent to carry out this intent is absolute. GILBERTa KELLY LOPEZ shall not be considered to have access to principal or income of the Trust. The Trustee shall hold, administer, and distribute all property allocated to the Trust for the exclusive benefit of GILBERTa KELLY LOPEZ during his lifetime, unless this Trust is earlier terminated.
For purposes of determining GILBERTa KELLY LOPEZ's eligibility for any such benefits, no part of the principal or undistributed income of the trust estate shall be considered available to him. In the event the Trustee is requested to release principal or income of the Trust to or on behalf of GILBERTa KELLY LOPEZ to pay for equipment, medication, or services which any government agency is authorized to provide, or in the event the Trustee is requested to petition the court or any other administrative agency for the release of trust principal or income for this purpose, the Trustee is, in its sole and absolute discretion, authorized to deny such request and authorized to take whatever administrative or judicial steps may be necessary to continue GILBERTa KELLY LOPEZ's eligibility for benefits, including obtaining legal advice about GILBERTa KELLY LOPEZ specific entitlement to public benefits and obtaining instructions from a court of competent jurisdiction ruling that the trust corpus is not available to GILBERTa KELLY LOPEZ for eligibility purposes. Any expenses of the Trustee in this regard, including reasonable attorney fees, shall be a proper charge to the trust estate.
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Section 5.03 No Seeking of Order to Distribute
For purposes of detennining GILBERTO KELLY LOPEZ's Medicaid eligibility, no part of the principal or undistributed income of the trust estate shall be considered available to him.
The Trustee shall deny any request by GILBERTO KELLY LOPEZ for the Trustee to (1) release principal or income of the Trust to or on behalf of GILBERTO KELLY LOPEZ to pay for equipment, medication, or services that Medicaid could provide if the Trust did not exist; or (2) petition the court or any other administrative agency for the release of trust principal or income for this purpose. The Trustee may, in the Trustee's discretion, take necessary administrative or legal steps to protect GILBERTO KELLY LOPEZ's Medicaid eligibility, including obtaining a ruling from a court of competent jurisdiction that the trust principal is not available to the beneficiary for purposes of detennining Medicaid eligibility. Expenses for this purpose, including reasonable attorney fees, will be a proper charge to the trust estate.
Where the Trustee has denied a request pursuant to the preceding paragraph, the Trustee may lend funds to GILBERTO KELLY LOPEZ in order to pay for the equipment, medication, or services that the Trustee believes that Medicaid could provide if the Trust did not exist, and may take an assignment of GILBERTO KELLY LOPEZ's claim against Medicaid as partial security for such loan.
Section 5.04 Commingling of Property Prohibited
GILBERTO KELLY LOPEZ shall have no ownership interest whatsoever in the assets of this Trust. Therefore, the Trustee shall not pennit GILBERTO KELLY LOPEZ to commingle his funds not belonging to the Trust with trust property. Specifically, the Trustee shall not accept or commingle any earnings or public benefits payable to GILBERTO KELLY LOPEZ. Under no circumstances maya representative payee for GILBERTO KELLY LOPEZ's Supplemental Security Income, or other benefits administered by the Social Security Administration, cause those funds to be commingled with this Trust agreement.
No property interests assigned, conveyed, or delivered to the Trustee that GILBERTO KELLY LOPEZ has any vested ownership interest in shall be acceptable to the Trustee. This shall include, but not be limited to, any social security benefits of GILBERTO KELLY LOPEZ, inheritances where GILBERTO KELLY LOPEZ has gained an ownership interest, property directed to this Trust instrument by means of a disclaimer exercised by the beneficiary, proceeds from a blocked account for the benefit of GILBERTO KELLY LOPEZ, or assets from a conservatorship account of GILBERTO KELLY LOPEZ.
In the event that a Trustee is also serving in any other fiduciary capacity on behalf of GILBERTO KELLY LOPEZ, those activities shall be independent from any actions taken with regard to this Trust agreement.
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Section 5.05 Trust Distributions
The Trustee shall administer the GILBERTa KELLY LOPEZ IRREVOCABLE TRUST and distribute its net income and principal as provided in this Section.
The following provisions are only meant as guidance, and the Trustee shall seek the advisement of an attorney or advisor experienced in making distributions for persons with disabilities similar to GILBERTa KELLY LOPEZ. The Trustee may make distributions for the benefit of GILBERTa KELLY LOPEZ in anyone or more of the following ways if he is receiving Supplemental Security Income, Medicaid benefits, or benefits through another similar program that has income and/or resource limitations.
The Trustee shall not distribute cash directly to GILBERTO KELLY LOPEZ.
The Trustee shall not reimburse GILBERTa KELLY LOPEZ directly for purchases he makes.
The Trustee may pay directly for services, provided GILBERTO KELLY LOPEZ does not receive any assets as a result of such expenditure that can be converted to cash.
The Trustee may distribute a gift certificate directly to GILBERTO KELLY LOPEZ if the certificate is nontransferable and nonrefundable and cannot be converted to cash.
Section 5.06 Residential Needs
The Trustee may acquire, including but not limited to the purchase of an existing residence or the purchase of real property and construction of a new residence, and maintain a residence for the residential needs of GILBERTa KELLY LOPEZ, as an expense of the Trust, and may pay all charges on any such residence, including but not limited to, construction costs, taxes, assessments, utility charges, insurance premiums, interest and amortization payments, repairs and other expenses and charges for the upkeep and maintenance of any such residence. If the Trustee is maintaining a residence for GILBERTa KELLY LOPEZ, any obligation imposed by regulatory authorities to inspect and appraise such real estate is waived.
The Trustee, in its sole and absolute discretion may charge GILBERTa KELLY LOPEZ rent or allow GILBERTa KELLY LOPEZ to live free of rent. Under no circumstances shall GILBERTa KELLY LOPEZ gain a fee interest in the property.
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Section 5.07 Compensation for Attendant Care Services The Trustee may hire care services capable of providing attendant care to GILBERTO KELLY LOPEZ.
Section 5.08 Employment and Compensation of Others The Trustee is authorized to disburse Trust funds to employ persons including, but not limited to, attorneys, auditors, certified public accountants, outside money managers, or agents, to advise or assist the Trustee in the performance of its duties.
Section 5.09 Purchases of Personal Property At the discretion of the Trustee, major items of personal property purchased for the beneficiary such as a vehicle, appliances, household goods or educational or medical equipment may be held in the name of the Trust or may be held in the name of another person other than the Trustee for the benefit ofGILBERTO KELLY LOPEZ and will not be considered an investment by the Trustee. While the Trustee shall at all times hold all right, title and interest in and to such personal property, the Trustee may in its discretion allow the beneficiary to possess and/or use such items of personal property. With prior notice, the Trustee may elect to designate any person as the Trustee's nominee for purposes of holding, insuring and otherwise safekeeping any and all such items of personal property. Upon the designation of a person as the Trustee's nominee for such purposes, the Trustee shall have no further obligation or responsibility for any and all such items of personal property; provided however, that the Trustee shall keep all purchase and ownership records delivered to the Trustee by the nominee with respect to such items of the personal property. Any nominee is directed to cause adequate insurance to be maintained on any such property (and the Trustee is authorized, but not required, to cause adequate insurance to be maintained on any such property should the nominee fail to do so). Neither the nominee nor the Trustee shall have any liability for any loss or damage to any such property. Any and all expenses incurred in connection with the ownership or operation of such items of personal property shall be paid by the Trust.
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Article Six Provisions in the Event of Changed Circumstances
Section 6.01 Discretionary Distributions if Existence of Trust Renders Gilberto Kelly Lopez Ineligible for Benefits
Notwithstanding anything to the contrary contained in the other provisions of this Trust, in the event the existence of this Trust has the effect of rendering GILBERTa KELLY LOPEZ ineligible for Regional Center services, Supplemental Security Income (SSI), Medicaid, or any other program of public benefits, the Trustee is authorized, in its sole and absolute discretion to purchase assets or services which are considered "exempt assets" for purposes of determining eligibility for those benefits and distribute those assets to GILBERTa KELLY LOPEZ. Trustee shall be mindful that a primary purpose of this trust agreement is management of assets for GILBERTa KELLY LOPEZ's benefit, and ineligibility for public benefits alone should not cause the Trust to be terminated.
Section 6.02 Early Termination Based on Cost If the Trustee shall determine, in its sole and absolute discretion, that any trust created under this agreement has become uneconomical to administer due to the high cost of administration relative to the value of the trust property, the Trustee may terminate such trust or trusts and distribute the trust property, including any accrued but undistributed net income, in the following order:
Purchase of an asset or service exempt from essential public benefits for the benefit of the primary beneficiary of this Trust. To GILBERTa KELLY LOPEZ outright.
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Article Seven Administration of the Trust upon the Death of Gilberto
Kelly Lopez
Upon the death of GILBERTO KELLY LOPEZ, all of the property of the GILBERTO KELLY LOPEZ IRREVOCABLE TRUST not previously distributed pursuant to prior Articles of this agreement shall be administered as provided in this Article.
Section 7.01 State Action to Recover Benefits
The Trustee shall distribute to the appropriate state agency all amounts remaining in the Trust at the time ofGILBERTO KELLY LOPEZ's death (after payment of the amounts set forth in Section 7.01 above) up to an amount equal to the total medical assistance paid on GILBERTO KELLY LOPEZ's behalf under a state plan pursuant to Title 42 of the United States Code. The Trustee shall require written verification of the amount of benefits previously paid on GILBERTO KELLY LOPEZ's behalf, and shall determine the amount, if any, of the Trust assets recoverable by the state. If the remaining Trust assets are insufficient to fully satisfy the claims made by more than one government agency, then such claims shall be reimbursed on a pro-rata basis.
Section 7.02 Payment of Expenses and Taxes
In addition, the Trustee is authorized but not directed to pay any expenses of GILBERTO KELLY LOPEZ's last illness, funeral and burial or cremation, including memorials and memorial services.
The payments authorized under this Section are discretionary, and no claims or right to payment by third parties may be enforced against the GILBERTO KELLY LOPEZ IRREVOCABLE TRUST by virtue of such discretionary authority. Decisions on such expenses may be made by the Trustee without regard to any limitation on such expenses imposed by statute or rule of court and may be made without obtaining the approval of any court having jurisdiction over the administration of GILBERTO KELLY LOPEZ's estate.
Section 7.03 Distribution of Remaining Trust Property
At the death of GILBERTO KELLY LOPEZ, he shall have the testamentary limited power to appoint all or any portion of the principal and undistributed income remaining in the trust among any person or entity.
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GILBERTa KELLY LOPEZ may not exercise this testamentary limited power of appointment to appoint to himself, his estate, his creditors or the creditors of his estate. GILBERTa KELLY LOPEZ may not exercise this testamentary limited power of appointment to create another power of appointment that, under the applicable local law, can be validly exercised so as to postpone the vesting of any estate or interest in such property for a period ascertainable without regard to the date of the creation of the first power; furthermore, GILBERTa KELLY LOPEZ is prohibited from exercising the power to suspend the absolute ownership or power of alienation of the property for a period ascertainable without regard to the date of the creation of the first power.
It is intended that this testamentary power of appointment be a limited power of appointment and not a general power of appointment as defined in Section 2041 of the Internal Revenue Code.
If GILBERTa KELLY LOPEZ should die before the complete distribution of his trust without exercising the foregoing limited power of appointment, the Trustee shall distribute the balance of the trust property to the GILBERTa KELLY LOPEZ FAMILY TRUST to be administered as provided in Section 7.04 below.
Section 7.04 Distribution of the Gilberto Kelly Lopez Family Trust
The GILBERTa KELLY LOPEZ FAMILY TRUST shall be held in trust and administered as provided in this Section.
Notwithstanding anything to the contrary contained in the other provisions of the trust, in the event the existence of the GILBERTa KELLY LOPEZ FAMILY TRUST has the effect of (1) making this Trust ineffective under the Tennessee Investment Services Act of 2009, or (2) rendering GILBERTa KELLY LOPEZ ineligible for Regional Center services, Supplemental Security Income (SSI), Medicaid, or any other program of public benefits, the Trustee shall distribute the balance of the trust property pursuant to Article Eight of this Agreement.
(a) Distribution of Income and Principal
The Trustee may pay to or apply for the benefit of the descendants of GILBERTa KELLY LOPEZ, KIMBERLY DENISE LOPEZ, and the descendants of KIMBERLY DENISE LOPEZ, as much of the net income and principal of the trust property as the Trustee, in its sole and absolute discretion, determines to be necessary or advisable for their education, health, maintenance, and support. Any undistributed income shall be added to principal.
(b) Other Available Resources
In making distributions pursuant to this Section, the Trustee shall take into consideration, to the extent that the Trustee deems advisable in its sale and
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absolute discretion, any income or other resources available to the beneficiaries which are outside of the trust and are known to the Trustee. (c) Distributions According to Needs The Trustee may make distributions to or for the benefit of one or more of the beneficiaries to the complete exclusion of the other beneficiaries. These distributions may be made to the beneficiaries in equal or unequal amounts according to their respective needs. Notwithstanding the above, in making distributions, the Trustee shall give priority in the following order:
1. To the descendants GILBERTO KELLY LOPEZ; 2. To KIMBERLY DENISE LOPEZ; and then 3. To descendants ofKIMBERLY DENISE LOPEZ. (d) Termination of the Trust Upon the death of the last to die of the children of GILBERTO KELLY LOPEZ, KIMBERLY DENISE LOPEZ and the children of KIMBERLY DENISE LOPEZ, the GILBERTO KELLY LOPEZ FAMILY TRUST shall terminate and the Trustee shall distribute the remaining trust property to the then living descendants of GILBERTO KELLY LOPEZ, per stirpes. If GILBERTO KELLY LOPEZ has no then living descendants, the Trustee shall distribute the remaining trust property to the then living descendants of KIMBERLY DENISE LOPEZ, per stirpes. If KIMBERLY DENISE LOPEZ has no then living descendants, the Trustee shall distribute the trust property pursuant to Article Eight of this Agreement.
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Article Eight Remote Contingent Beneficiaries
If, at any time, there is no person or entity qualified to receive final distribution of the trust estate or any part of it, then any such portion of the trust estate with respect to which such failure of qualified recipients has occurred shall be distributed to those persons who would inherit it had GILBERTO KELLY LOPEZ died intestate owning such property, as determined and in the proportions provided by the laws of Tennessee then in effect. Notwithstanding anything to the contrary contained in the other provisions of the Trust, in the event the existence of the above provision has the effect of rendering GILBERTa KELLY LOPEZ ineligible for Regional Center services, Supplemental Security Income (SSI), Medicaid, or any other program of public benefits, the Trustee shall distribute the trust property to the estate of GILBERTa KELLY LOPEZ.
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Article Nine Administration of Trusts for Underage and Incapacitated
Beneficiaries
Section 9.01 Distributions for Minor and Incapacitated Beneficiaries
Whenever any beneficiary shall be under 25 years of age, or is incapacitated (as defined in Section 12.05(f), or by reason of illness, injury or advanced age, is, in the opinion of the Trustee, unable to administer any payment or distribution properly, except as to a beneficiary's right to withdraw a contribution pursuant to the tenus of this agreement, the Trustee may make the distribution to such beneficiary or retain the amount to be distributed in any manner the Trustee, in its sole and absolute discretion, deems advisable, including without limitation, by the methods authorized in this Article.
Before making any distributions to the beneficiaries under this Article, the Trustee shall, to the extent that it is both reasonable and possible, consider the behavior of the beneficiaries with regard to their disposition of prior distributions of trust property, but the Trustee shall have no responsibility to inquire into the ultimate disposition of the distributed property.
Section 9.02 Distribution Methods
The Trustee may distribute or retain trust property for such beneficiaries in anyone or more of the following methods:
(a) Distribution to Beneficiary
The Trustee may distribute such trust property directly to the beneficiary.
(b) Distribution to Guardian or Conservator or Family Member
The Trustee may distribute such trust property to the beneficiary's guardian or conservator or to the beneficiary'S parent or other family member or other person who has assumed the responsibility of caring for the beneficiary.
(c) Distribution to Custodian
The Trustee may distribute such trust property to any person, including the Trustee, as custodian under the applicable state's version of the Uniform Transfers to Minors Act.
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(d) Distribution to Other Persons or Entities The Trustee may distribute such trust property to persons and entities for the use and benefit of the beneficiary. (e) Retention in Trust The Trustee may retain such trust property in a separate trust for the benefit of such beneficiary until the beneficiary attains 25 years of age or, in the opinion of the Trustee, is no longer incapacitated. Until the termination of such trust, the Trustee, in it sale and absolute discretion, shall distribute as much of the net income and principal of the trust as the Trustee deems necessary or advisable for the health, education, maintenance or support of the beneficiary. Any undistributed net income shall be accumulated and added to principal. When the beneficiary attains 25 years of age or is no longer incapacitated (as the case may be), the Trustee shall distribute the remainder trust property to the beneficiary. If the beneficiary should die before the complete distribution of the trust share, then upon the death of the beneficiary, the Trustee shall distribute the remaining net income and principal of this trust share to such persons or entities (including the beneficiary's estate) in such manner, interests, and proportions either outright or upon such new trusts, conditions or limitations as the beneficiary may direct by Last Will and Testament Of by any other written instrument that expressly refers to this power. If the beneficiary fails to validly exercise this testamentary general power of appointment, the Trustee shall distribute the balance of this trust property to the then living descendants of the beneficiary, per stirpes. If the beneficiary has no then living descendants, the Trustee shall distribute the remaining trust property as provided in Article Eight of this agreement.
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Article Ten Trust Administration
Section 10.01 Distributions to Beneficiaries
Whenever in this agreement, the Trustee is authorized to make a distribution of net income or principal to a beneficiary of this trust, the Trustee may apply for the benefit of such beneficiary any property that otherwise could be distributed directly to such beneficiary .
Section 10.02 No Court Proceedings The trust shall be administered expeditiously consistent with its prOVISIons, free of judicial intervention, and without order, approval or action of any court. It shall be subject only to the jurisdiction of a court being invoked by the Trustee or by other interested parties. Proceedings to seek instructions or court determinations shall be initiated in the court having original jurisdiction over matters relating to the construction and administration of trusts. Seeking instructions or court determination shall not thereafter subject the trust to the continuing jurisdiction of the court. Any questions or disputes that may arise during the administration of the trust should be resolved by mediation and if necessary, arbitration in accordance with the Uniform Arbitration Act. Each of the Trustees shall select an arbiter and, if necessary to establish a majority decision, the arbiters so selected shall select an additional arbiter. The decision of a majority of the arbiters so selected shall control with respect to such matter.
Section 10.03 No Bond
No Trustee acting under this trust shall be required to furnish any bond for the faithful performance of such Trustee's duties. If required by any law or court rule, no surety shall be required on such bond.
Section 10.04 Trustee Compensation An individual serving as Trustee shall be entitled to fair and reasonable compensation for the services he or she renders as a fiduciary. Any corporate fiduciary serving as the Trustee shall be compensated by agreement with the individual Trustee or, in the absence of such agreement, in accordance with the corporate fiduciary's published fee schedule in effect at the time the services are rendered.
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The Trustee may charge additional fees for services it provides to any trust hereunder that are not comprised within its duties as Trustee, including, but not limited to, fees for legal services, fees for tax return preparation, fees for providing corporate fmance or investment banking services.
The Trustee may' be reimbursed for reasonable costs and expenses incurred in carrying out its duties under this agreement.
Section 10.05 Employment of Professionals
The Trustee may appoint, employ and remove, at any time and from time to time, investment advisors, accountants, auditors, depositories, custodians, brokers, consultants, attorneys, expert advisers, agents, and employees to advise or assist the Trustee in the performance of its duties. The Trustee may act with or without independent investigation upon the recommendations of the persons or entities employed
The Trustee may reasonably compensate those persons or entities regardless of whether any person or entity so employed shall be a Trustee hereunder or shall be a corporate affiliate of a Trustee of any trust created under this agreement and regardless of whether any entity so employed shall be one in which a Trustee of a trust created under this agreement shall be a partner, member, stockholder, officer, director or corporate affiliate or shall have any other interest.
The Trustee may pay the usual compensation for such services out of principal or income as the Trustee may deem advisable, and such compensation may be paid without diminution of or charging the same against the compensation of any Trustee hereunder, and any Trustee who shall be a partner, stockholder, officer, director or corporate affiliate in any such entity shall nonetheless be entitled as a partner, member, stockholder, officer, director or corporate affiliate to receive such Trustee's share of the compensation paid to such entity.
Section 10.06 Exercise of Testamentary Power of Appointment
A testamentary power of appointment granted under this instrument may be exercised by valid Last Will and Testament, by valid revocable living trust, or by any other written instrument that specifically refers to this power of appointment. The appointment may be exercised to appoint the property among the permissible appointees in equal or unequal proportions, and on such terms and conditions, whether outright or in trust, as the holder of the power designates. The holder of the power may grant further powers of appointment to any person to whom principal may be appointed.
The Trustee may conclusively presume that any power of appointment granted to any beneficiary in this Agreement has not been exercised by the beneficiary if the Trustee has no knowledge of the existence of a valid will, living trust agreement or other written instrument exercising such power within three (3) months after the beneficiary's death.
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Section 10.07 Trust Accounting
The Trustee shall render an accounting at least annually to the income beneficiaries of any trust created in this agreement during the accounting period. Such accounting shall include the receipts, disbursements, and distributions occurring during the accounting period together with a statement of the trust property.
The assent by all income beneficiaries, to any accounting rendered by the Trustee, other than an interested Trustee, shall make the matters disclosed in such accounting, in the absence of fraud or manifest error, binding and conclusive upon all persons, whether or not in being, then having or who may thereafter have any interest, vested or contingent, in either income or principal. In the case of a minor or incapacitated beneficiary, that beneficiary'S natural guardian or legal representative shall give the assent.
The failure of any such person to object to any account by written notice to the Trustee within 60 days of the receipt of a copy of such account shall be deemed to be an assent by such person.
The trust's financial records along with the trust documentation shall be available at reasonable times and upon reasonable notice for inspection by trust beneficiaries and their representatives. The Trustee shall not be required to furnish trust information regarding the trust to any individual, corporation, or other entity that is not a beneficiary or the representative of a beneficiary, or is not requesting such pursuant to a valid court order.
Section 10.08 Action of Trustees; Disclaimer
If two Trustees are eligible to act with respect to a given matter, then the concurrence of both shall be required for action to be taken with respect to any trust under this agreement.
If more than two Trustees are eligible to act with respect to a given matter, then the concurrence of a majority of the Trustees shall be required and shall control all action to be taken with respect to any trust under this agreement.
If there is not the concurrence and joinder of a majority of trustees with respect to a matter as to which they have joint powers, the matter shall be settled by mediation and if necessary, arbitration in accordance with the Uniform Arbitration Act. Each of the Trustees shall select an arbiter and if necessary to establish a majority decision, the arbiters so selected shall select an additional arbiter. The decision of a majority of the arbiters so selected shall control with respect to such matter.
A nonconcurring Trustee may dissent or abstain from a decision of the majority. Such Trustee shall be absolved from personal liability by registering such dissent or abstention in the records of such trust, and shall thereafter act with the other trustees in any way necessary or appropriate to effectuate the decision of the majority.
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Notwithstanding the foregoing and any provision of this agreement to the contrary, any beneficiary serving as a Trustee may disclaim or release, by an instrument in writing, any power as Trustee in whole or in part, irrevocably or for such period of time as such Trustee may specify, without affecting the continuance of the power in any other Trustee.
Section 10.09 Delegation of Trustee Authority; Power of Attorney
Any Trustee may, by an instrument in writing, delegate to any other Trustee the power to exercise any powers, including discretionary powers, granted the Trustee in this agreement. During any such delegation, the delegated powers may be exercised by the Trustee to whom delegated to the same extent as if the delegating Trustee had personally joined in the exercise of such power. The delegating Trustee may revoke such delegation at any time by written notice to the non-delegating Trustee.
The Trustee may execute and deliver a revocable or irrevocable power of attorney appointing any individual or corporation to transact any and all business on behalf of any trust created in this agreement. The power of attorney may grant to the attorney-in-fact all of the rights, powers, and discretion that the Trustee could have exercised.
Section 10.10 Power to Terminate Trusts
If, at any time, the Trustee, other than an Interested Trustee, in its sole and absolute discretion, determines that any trust created under this agreement is no longer economical to administer or that any trust is otherwise inadvisable to administer as a trust, or if the Trustee deems it in the best interest of the beneficiaries, the Trustee, without further responsibility, may terminate such trust or trusts and distribute the trust property, including any undistributed net income to those persons then entitled to receive mandatory distributions of the net income from the trust property and in the same proportions to which they are entitled to receive the net income. If a group of beneficiaries is eligible to receive discretionary distributions of the net income from a trust, such trust shall vest in such beneficiaries in equal shares per capita.
Section 10.11 Merger of Corporate Fiduciary
If any corporate fiduciary acting under this agreement is merged with or transfers substantially all of its trust assets to another corporation or if a corporate fiduciary changes its name, the successor shall automatically succeed to the trusteeship as if originally named a Trustee and no document of acceptance of trusteeship shall be required.
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Section 10.12 Beneficiary's Status Until the Trustee receives notice of any incapacity, birth, marriage, death or other event upon which the right to payments may depend, the Trustee shall not be liable for acting or failing to act with respect thereto or for disbursements made in good faith to persons whose interest may have been affected by such event. The Trustee may rely on any infonnation provided by a beneficiary with respect to the beneficiary's assets and income. The Trustee shall have no independent duty to investigate the status of any beneficiary and shall not incur any liability for failure to do so.
Section 10.13 Discharge of Third Persons Persons dealing in good faith with the Trustee shall not be required to see to the proper application of money paid or property delivered to the Trustee, or to inquire into the authority of the Trustee as to any transaction, and the receipt from the Trustee for any money or property paid, transferred or delivered to it shall be a sufficient discharge to the person or persons paying, transferring or delivering the same from all liability to see to the application thereof.
Section 10.14 Certificate by Trustee A written statement of the Trustee at any time as to any facts relative to the trust may always be relied upon and shall always be conclusive evidence in favor of any transfer agent and any other person dealing in good faith with the Trustee in reliance upon such statement.
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Article Eleven Trustee's Powers
Section 11.01 Introduction to Trustee's Powers The Trustee may exercise, without prior approval from any court, all powers conferred by this trust agreement and any other powers conferred by law, including, without limitation, those powers set forth under the common law or any fiduciary powers act or other laws of the State of Tennessee, except as otherwise specifically provided in this agreement. Each power conferred upon the Trustee by state or federal statutes shall be subject to any express limitations or contrary directions contained in this agreement. The Trustee of a trust may have duties and responsibilities in addition to those described in this agreement. Any Trustee serving under this agreement is encouraged to obtain legal advice when appropriate. Notwithstanding anything to the contrary contained in the other provisions of this trust, the Trustee shall possess the powers contained in this Article subject to the "Prudent Man Rule."
Section 11.02 Rights of Persons Dealing with the Trustee The Trustee may execute and deliver any and all instruments in writing, which our Trustee considers necessary to carry out any of the powers granted in this agreement. A third party dealing with the Trustee shall not be required to inquire into the terms of this agreement, the authority of the Trustee, or to see to the application which the Trustee makes of funds or other property received by the Trustee. Any person dealing with the Trustee shall be entitled to rely upon an Affidavit or a Certificate of Trust, and upon any instruments duly executed in accordance with the provisions thereof, to the same extent as such person might rely upon the original trust agreement.
Section 11.03 Powers to Be Exercised in the Best Interests of the Beneficiaries
The Trustee shall exercise the administrative and investment powers granted in this Article without the order of any court, as the Trustee determines in its sole and absolute discretion to be in the best interests of the beneficiaries.
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Despite any conflicting provision in this agreement, the Trustee shall not exercise any power in a manner inconsistent with the beneficiaries' right to the beneficial enjoyment of the trust property in accordance with the general principles of the law of trusts.
Section 11.04 The Trustee's Investment Powers
Except as otherwise specifically provided in this trust agreement, the investment powers of the Trustee shall include the following:
(a) Investment Powers in General
The Trustee may invest in any type of investment that the Trustee determines is consistent with the investment goals and overall goals of the trust, taking into account the trust's overall investment portfolio. Accordingly, the Trustee may administer, invest, and reinvest trust property in stocks, bonds, securities, commodities, options, and all forms of real or personal property, both tangible and intangible, whether such property is located inside or outside the geographic borders of the United States of America or its possessions or territories.
Without limiting the Trustee's investment authority in any way, the Trustee should exercise reasonable care and skill in selecting and retaining trust investments. The Trustee should also take into account the following factors in choosing investments for the trust:
The potential total return from the investment, both in the form of income and appreciation;
The potential income tax consequences of the investment;
The investment's potential for volatility and return; and
The role the investment will play in the trust portfolio.
The Trustee should also consider the possible effects of inflation or deflation, changes in global and U.S. economic conditions, transaction expenses, and the need for liquidity in constructing the trust's investment portfolio.
The Trustee may delegate to any registered investment adviser or corporate fiduciary the discretion to manage trust investments.
The Trustee may sell at public or private sale, transfer, exchange property for other property, or otherwise dispose of trust property for such
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consideration and upon such terms and conditions as the Trustee deems advisable, including options of any duration for any such sales, exchanges, or transfers.
The Trustee may invest in investment companies, mutual funds, common trust funds and like investments.
The Trustee may purchase life, disability, medical, liability, long-term health care and other insurance on the behalf of and for the benefit of any trust beneficiary. The Trustee may purchase annuities and like investments for any trust beneficiary.
The Trustee may enter into any contracts, and deliver deeds or other instruments as the Trustee deems appropriate to the purposes of the trust.
(b) Banking Powers
The Trustee may establish bank accounts of all types in one or more banking institutions as the Trustee may choose. The Trustee may open such accounts in the name of the Trustee (with or without disclosing fiduciary capacity) or in the name of the trust. When an account is in the name of the trust, checks on that account, and authorized signatures need not disclose the fiduciary nature of the account or refer to any trust or Trustee.
An account from which frequent disbursements are made need not be an interest bearing account. The Trustee may authorize withdrawal from an account by check, draft or other instrument or in any other manner.
(c) Business Powers
The Trustee is authorized to serve as officer, director, manager, and/or in any other capacities of any proprietorship, partnership, joint venture, corporation, or other enterprise in which the trust has an interest (whether or not total or controlling). The Trustee may receive compensation for its services as such.
The Trustee may contract with and otherwise deal with any such enterprise in the same manner as with any such enterprise in which the trust has no interest, and to use any voting power the Trustee may have (whether as Trustee or as officer, director, or other official of the enterprise) to implement any such authority.
With respect to any units in a limited liability company, limited partnership, and/or stock in a closely-held corporation ("closely-held company") contributed to the trust, the powers set forth in this Article shall not disqualify any Trustee acting personally and independently, and not in a fiduciary capacity, from holding office in a closely-held company,
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accepting remuneration from a closely-held company, voting any units or stock in favor of such Trustee as a director or officer of a closely-held company, or purchasing or selling units or stock of a closely-held company.
The Trustee may elect to qualify any trust created in this agreement that is funded with Subchapter S stock as a Qualified Subchapter S Trust ("QSST") under Section 1361(d)(3) of the Internal Revenue Code of 1986 to administer such trust in accordance with the requirements of that Section in order that the stock and trust will continue to be treated as a QSST for tax purposes.
(d) Common Investments
For purposes of convenience with regard to the administration and investment of the trust property, the Trustee may invest and reinvest part or all of the trust property jointly with trust property of other trusts of which the Trustee is also serving as a Trustee. For this purpose, a corporate fiduciary acting as Trustee under this agreement may use common funds for investment.
However, when trust property is managed and invested in this manner, the Trustee shall maintain records that sufficiently identify that portion of the jointly invested assets that constitute the trust property of this trust.
(e) Farm, Ranch and Other Agricultural Powers
The Trustee may retain, sell, acquire, and continue any farm or ranching operation whether as a sole proprietorship, partnership, or corporation.
The Trustee may engage in the production, harvesting, and marketing of either farm and ranch products either by operating directly or with management agencies, hired labor, tenants, or sharecroppers.
The Trustee may engage and participate in any government farm program, whether state or federally sponsored.
The Trustee may purchase or rent machinery, equipment, livestock, poultry, feed, and seed.
The Trustee may improve and repair all farm and ranch properties; construct buildings, fences, and drainage facilities; acquire, retain, improve, and dispose of wells, water rights, ditch rights, and priorities of any nature.
The Trustee may, in general, do all things customary or desirable to operate a farm or ranch operation for the benefit of the beneficiaries of the various trusts created under this agreement.
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(f) Real Estate Powers
The Trustee may sell at public or private sale, purchase, exchange, lease for any period, mortgage, manage, alter, improve and in general deal in and with real property in such manner and on such terms and conditions as any person might do as owner of such real property.
The Trustee may grant or release easements in or over, subdivide, partition, develop, raze improvements or abandon, any real property.
The Trustee may manage real estate in such manner as the Trustee deems best and shall have all other real estate powers requisite for such purpose.
The Trustee may enter into leases and grant options to lease trust property even though the term extends beyond the termination date of the trusts established under this agreement. For such purposes, the Trustee may enter into any contracts, covenants and warranties agreements as the Trustee deems appropriate.
(g) Securities, Brokerage and Margin Powers
The Trustee may buy, sell, and deal in stocks, bonds, commodities, options and other securities of any kind and in any amount, including short sales. The Trustee may write or purchase call or put options, or other derivative securities.
The Trustee may carry stock certificates and other property in the form of street certificates, or in any other form, without disclosing the existence of any trust. The Trustee may permit trust property to be held in the custody of a banking institution or brokerage firm.
The Trustee may maintain margin accounts with brokerage firms and may pledge securities to secure loans and advances made to the Trustee or to (or for the benefit of) a beneficiary of any trust created under this agreement.
The Trustee may place all or any part of the securities held by the trust in the custody of a bank or trust company. The Trustee may have all securities registered in the name of the bank or trust company or in the name of its nominee. The Trustee may appoint such bank or trust company as the agent or attorney in fact to collect, receive, receipt for and disburse any income, and generally to perform the duties and services incident to a custodian of accounts.
The Trustee may employ a broker-dealer as a custodian for securities held by the trust and register such securities in the name of the broker-dealer, register securities in the name of a nominee with or without the addition of words indicating that such security is held in a fiduciary capacity, or hold
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securities in bearer or uncertificated form; and use a central depository, clearing agency or book-entry system, such as The Depository Trust Company, Euroclear or the Federal Reserve Bank of New York.
The Trustee may participate in any reorganization, recapitalization, merger or similar transaction and may give proxies or powers of attorney which may be discretionary and with or without powers of substitution and the Trustee may vote or refrain from voting as to any matter. The Trustee may exercise or sell conversion or subscription rights for securities of all kinds and description.
The Trustee may vote, in person or by proxy, at stockholder meetings.
(h) Loans and Borrowing Powers
The Trustee may loan money to any beneficiary with or without interest, on any term or on demand, with or without collateral, as the Trustee deems to be in the best interests of the trust beneficiaries.
The Trustee may loan money to any other person or entity on any terms or on demand. Any such loan shall be fully secured with good collateral and shall bear a market rate of interest.
It may borrow money upon such tenns and conditions as it shall deem advisable, including, in the case of a corporate fiduciary, the power to borrow from its own banking or commercial department.
The Trustee shall have the power to obligate the trust property for the repayment of any sums borrowed where the best interests of the beneficiaries have been taken into consideration.
The Trustee may encumber trust property by mortgages, pledges or other hypothecation and shall have the power to enter into any mortgage whether as a mortgagee or mortgagor even though the term may extend beyond the tennination of any trust created under this agreement and even though the term may extend beyond the period that is required for an interest created under this agreement to vest in order to be valid under the rule against perpetuities.
(i) Residences and Tangible Personal Property
The Trustee may acquire, maintain, invest and reinvest in any residence for the use and benefit of the beneficiaries of any trust whether or not such residence is income producing and without regard to the proportion that the value of the residence may bear to the total value of the trust property even if such retention involves financial risks that trustees would not ordinarily incur. The Trustee may pay and make arrangements for others to pay, or to share in the payment of, all carrying costs of such residence,
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including, but not limited to any taxes, assessments, insurance, and all expenses of maintaining the residence in suitable repair, and all expenses relating to the operation of the residence for the benefit of the beneficiaries.
The Trustee may acquire, maintain, invest and reinvest in articles of tangible personal property whether or not such property is income producing and pay the expenses of the repair and maintenance of such property.
The Trustee shall have no duty to convert the property referred to in this Subsection to productive property except as otherwise required by other provisions of this agreement.
The Trustee may permit any income beneficiary of any trust to occupy any real property or use any personal property owned by the trust on such terms or arrangements as the Trustee may determine, whether rent free or in consideration of payment of taxes, insurance, maintenance, repairs, or other charges.
The Trustee shall have no liability for any depreciation or loss as a result of the retention of any property retained or acquired under the authority of this Subsection.
(j) Life Insurance Powers
Except as otherwise provided in this agreement, the Trustee shall have the powers with regard to life insurance as set forth in this Subsection.
The Trustee may purchase, accept, hold, and deal with as owner, policies of insurance on the life of any trust beneficiary, or on the life of any person in whom any trust beneficiary has an insurable interest.
The Trustee shall have the power to execute or cancel any automatic premium loan agreement with respect to any policy, and shall have the power to elect or cancel any automatic premium loan provision in a life insurance policy. The Trustee may borrow money with which to pay premiums due on any policy either from the company issuing the policy or from any other source and may assign any such policy as security for the loan.
The Trustee shall have the power to exercise any option contained in a policy with regard to any dividend or share of surplus apportioned to the policy; to reduce the amount of a policy or convert or exchange the policy; or to surrender a policy at any time for its cash value.
The Trustee may elect any paid-up insurance or any extended tenn insurance nonforfeiture option contained in a policy.
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The Trustee shall have the power to sell policies at their fair market value to the insured or to anyone having an insurable interest in the policies.
The Trustee shall have the right to exercise any other right, option, or benefit contained in a policy or permitted by the insurance company issuing that policy.
Upon termination of any trust created under this agreement, the Trustee shall have the power to transfer and assign the policies held by the trust as a distribution of trust property.
(k) Oil, Gas and Mineral Interests
The Trustee may acquire, maintain, develop and exploit, either alone or jointly with others, any oil, gas, coal, minerals and other natural resource rights or interests.
The Trustee may drill, test, explore, mine, develop, extract, remove, convert, manage, retain, store, sell or exchange any of such rights and interests on such terms and for such price as the Trustee deems advisable.
The Trustee may execute leases, pooling or unitization agreements and other types of agreements in connection with such oil, gas, coal, mineral or other natural resource rights or interests even though such arrangements may extend beyond the termination of any trust under this agreement.
The Trustee may execute division orders, transfer orders, releases, assignments, farm outs, and any other instruments which it deems proper.
The Trustee may employ the services of consultants or outside specialists in connection with the evaluation, management, acquisition, disposition, or development of any mineral interest, and may pay the cost of such services from the principal or income of the trust property.
Section 11.05 The Trustee's Administrative Powers
In addition to the other powers granted the Trustee in other provisions of this agreement, the Trustee shall have the following administrative powers:
(a) Expenses and Compensation
The Trustee shall pay from income or principal all of the reasonable expenses attributable to the administration of the respective trusts created in this Agreement.
The Trustee shall pay itself reasonable compensation for its services as fiduciary as provided in this Agreement, and shall reasonably compensate
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those persons employed by the Trustee, including agents, auditors, accountants, attorneys, and financial advisors (including brokers, financial planners, professional money managers, registered investment advisors and trust departments and officers).
The Trustee may appoint, employ and remove, at any time and from time to time, any investment counsel, accountants, depositories, custodians, brokers, consultants, attorneys, expert advisers, agents, clerks and employees, irrespective of whether any person, firm or corporation so employed shall be a Trustee hereunder or shall be a corporate affiliate of a Trustee hereunder and irrespective of whether any firm or corporation so employed shall be one in which a Trustee hereunder shall be a partner, stockholder, officer, director or corporate affiliate or shall have any interest.
The Trustee may pay the usual compensation for such services out of principal or income as the Trustee may deem advisable, and such compensation may be paid without diminution of or charging the same against the commissions or compensation of any Trustee hereunder, and any Trustee who shall be a partner, stockholder, officer, director or corporate affiliate in any such firm or corporation shall nonetheless be entitled as a partner, stockholder, officer, director or corporate affiliate to receive such Trustee's share of the compensation paid to such firm or corporation.
(b) Power to Merge or Sever Trusts
The Trustee may merge and consolidate any trust created in this agreement with any other trust created by any person at any other time, if the other trust contains substantially the same terms for the same beneficiaries, and has at least one Trustee in common with the trust or trusts created in this agreement.
The Trustee may administer such merged and consolidated trusts as a single trust or unit. If, however, such a merger or consolidation does not appear feasible, as determined in the sole and absolute discretion of the Trustee, the Trustee may consolidate the assets of such trusts for purposes of investment and trust administration while retaining separate records and accounts for the respective trusts.
The Trustee may sever any trust on a fractional basis into two or more separate and identical trusts for any reason or to segregate by allocation to a separate account or trust, a specific amount from, a portion of, or specific assets included in, the trust property of any trust. Income earned on a segregated amount, portion, or specific asset after the segregation is effective, passes with the amount, portion, or asset segregated. Each
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separate trust must be held and administered upon substantially identical terms and conditions of the trust from which it was severed.
Subject to the terms of the trust, the Trustee may consider differences in federal tax attributes and other pertinent factors in administering the trust property of any separate account or trust, in making applicable tax elections, and in making distributions. A separate trust created by severance must be treated as a separate trust for all purposes from the date on which the severance is effective. The effective date of the severance may be retroactive to a date before the date on which the Trustee exercises such power.
(c) Income and Principal
The Trustee may determine in a fair, equitable, and practical manner how all Trustee's fees, disbursements, receipts, and wasting assets shall be credited, charged, or apportioned between principal and income.
The Trustee may set aside from trust income reasonable reserves for taxes, assessments, insurance premiums, repairs, depreciation, obsolescence, depletion, and for the equalization of payments to or for the beneficiaries; it may select any and all accounting periods with regard to the trust property.
All increases in the value of any life insurance policies prior to the death of the insured held by this trust shall be principal and not income.
(d) Nominee Powers
The Trustee may hold real estate, securities or any other trust property in the name of a nominee or in any other form without disclosing the existence of any trust or its fiduciary capacity.
(e) Settlement Powers
The Trustee may settle, by compromise, arbitration or otherwise any and all claims and demands in favor of or against, or in any way relating to, any trust created under this agreement upon such terms as the Trustee may determine. The Trustee may release or abandon any claims in favor of this trust.
(f) Distribution Powers
The Trustee may make any distribution or division of trust property without the consent of any beneficiary. The Trustee may make distributions in cash or in kind, or partly in each, in such proportion (and not necessarily pro rata) and at such values as the Trustee shall determine.
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The Trustee may allocate undivided interests in specific assets to any beneficiary or trust share in such kind and proportion (and not necessarily pro rata) as the Trustee shall determine.
Such detenninations may be made by the Trustee without regard to the basis or other income tax attributes of the property.
(g) Payment of Taxes and Expenses
Except as otherwise provided in this agreement, the Trustee is authorized to pay all property taxes, assessments, fees, charges, and other expenses incurred in the administration or protection of this Trust. All such payments shall be a charge against the Trust fund and shall be paid by the Trustee out of the income of the Trust fund, or, in the event and to the extent that the income may be insufficient, then out of the corpus of the Trust fund, at any time prior to final distribution of the Trust property. The determination of the Trustee in its sole discretion with respect to all such matters shall be conclusive upon the beneficiaries of this Trust.
(h) Retention and Abandonment of Trust Property
Except as otherwise required by any contrary provision of this trust agreement, the Trustee may retain any trust property contributed by any person or received from any estate or any other source, whether or not such property is income producing, marketable or of a character generally prescribed for the investment of trust funds and without regard to the proportion the value of such property bears to the total value of trust property.
The Trustee shall invest contributions of cash and cash equivalents as soon as reasonably practical after such assets have been acquired by the trust. However, the Trustee is permitted to retain a reasonable amount in cash or money market accounts in order to pay anticipated expenses and other costs and to provide for anticipated distributions to, or for the benefit of, a beneficiary.
The Trustee may also abandon any trust property the Trustee deems to be of insignificant value.
(i) Environmental Powers
The Trustee shall have the powers set forth in this Subsection to deal with any actual or threatened contamination of trust property by any hazardous substance to deal with any other environmental matter affecting the trust property.
The Trustee shall have the power to inspect trust property to determine compliance with or to respond to any environmental law affecting trust
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property. "Environmental Law" shall mean any federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment or of human health.
The Trustee may refuse to accept property if the Trustee determines that such property is or may be contaminated by any hazardous substance or is currently being used for any purpose involving hazardous substances that could create liability to the trust or to the Trustee.
The Trustee may use and expend trust property to (i) conduct environmental assessments, audits or site monitoring; (ii) take remedial action to contain, clean up or remove any hazardous substance including a spill, discharge or contamination; (iii) institute, contest or settle legal proceedings brought by a private litigant or any local, state, or federal agency concerned with environmental compliance; (iv) comply with any order issued by any court or by any local, state, or federal agency directing an assessment, abatement or clean-up of any hazardous substance; and (v) employ agents, consultants and legal counsel to assist the Trustee in these actions.
The Trustee shall not be liable for any loss or reduction in value sustained by the trust as a result of the retention by the Trustee of property on which hazardous materials or substances requiring remedial action are discovered unless the Trustee contributed to that loss or reduction in value through willful misconduct or gross negligence.
The Trustee shall not be liable to any beneficiary or to any other party for any decrease in the value of trust property as a result of the Trustee's compliance with any federal, state, or local environmental law, including any reporting requirement.
The Trustee may release, relinquish or disclaim any power held by the Trustee that the Trustee, in its sole and absolute discretion, determines may cause the Trustee to incur individual liability under any Environmental Law.

Section 11.06 Limitation on Trustee's Powers

All powers granted to the Trustee under this agreement or by applicable law shall be subject to the limitations set forth in this Section, unless explicitly excepted by reference to this Section.

(a)

Limitations on the Powers of an Interested Trustee

An Interested Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal, or the

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termination of the trust to or for the benefit of a beneficiary, to the extent that the exercise of such discretion is other than for the health, education, maintenance or support of a beneficiary as described under Sections 2041 and 2514 of the Internal Revenue Code.

(b) No Distributions in Discharge of Support Obligation of a Trustee

A Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal of any trust administered under the terms of this agreement to any person the Trustee is legally obligated to support, to the extent such distribution discharges the support obligation of the Trustee.

(c)

Insurance Policy on the Life of a Trustee

If a policy that insures the life of a Trustee is held as part of the trust property, such Trustee shall have no right to exercise any powers or rights in such policy, and such powers and rights shall be exercised solely by the other Trustee or Trustees serving under this agreement.

If the insured Trustee is the only then acting Trustee, then the powers with respect to the insurance policy on the life of the Trustee shall be exercised by a Special Independent Trustee designated under the provisions of this agreement dealing with trustee succession.

If any rule of law or court decision construes the ability of the insured Trustee to name a Special Independent Trustee as an incident of ownership of the life insurance policy on the insured's life, the Special Independent Trustee shall be selected by a majority of the then current mandatory and discretionary income beneficiaries, excluding the insured Trustee if the insured Trustee is a beneficiary.

(d) Insurance Policy on a Beneficiary's Life

If a policy that insures the life of a beneficiary of a trust created under this agreement is held as part of the trust property, the beneficiary acting individually or as Trustee shall not have any power over such policy of insurance, the cash value, or the proceeds thereof. The intent of this denial of any power is to prevent an insured beneficiary from having any power that would constitute an incident of ownership over the policy.

In addition, no distributions of income or principal to the insured beneficiary shall be satisfied out of the insurance policy, the cash value or any other economic benefit of the policy.

The limitations of this Subsection shall not apply if the proceeds of such insurance policy would, upon the death of the beneficiary, be included in

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the gross estate of such beneficiary for federal estate tax purposes for any reason other than the limitations of this Subsection.
Section 11.07 Investment Manager
The Trustee shall exercise the powers hereinbefore granted to it in this Article with respect to each trust hereunder only on the written direction of the Investment Manager of such trust, provided that:
(a) Trustee shall manage and invest the otherwise uninvested cash in each such trust in its sole discretion;
(b) the Investment Manager may at any time, or from time to time, delegate to Trustee the authority to exercise in its sole discretion the power to buy or sell any property (or, having delegated the authority to do so, revoke such authority); and
(c) if at any time during the continuance of any such trust there shall be no Investment Manager of such trust, or if the Investment Manager of such trust shall fail to communicate in writing to Trustee his or her direction as to the exercise of any of the aforesaid powers for which exercise the direction of such Investment Manager shall be necessary, within ninety (90) days after Trustee shall have sent to such Investment Manager, by certified mail (or by any other means for which the sender shall have evidence of receipt by the addressee), at his or her last known address, a written request for such direction (notwithstanding that Trustee shall be under no obligation to request any such direction), then Trustee is hereby authorized and empowered to take such action in the premises as it, in its sole discretion, shall deem to be for the best interest of the beneficiaries of such trust.
The Investment Manager of each trust hereunder shall be ALBERT M. ALEXANDER, JR., Certified Structured Settlement Consultant, so long as he is willing and able to act as such Investment Manager. If ALBERT M. ALEXANDER, JR. is unwilling or unable to act as such Investment Manager, the successor Investment Manager shall be the Investment Manager appointed by ALBERT M. ALEXANDER, JR. in writing, signed and dated, delivered to the Trustee. Each successor Investment Manager appointed pursuant to this paragraph shall have the right to appoint successor Investment Managers.
If ALBERT M. ALEXANDER, JR. does not appoint a successor Investment Manager, or at any other time a successor Investment Manager has not been appointed, the Trustee can designate a successor Investment Manager.
To qualify, any person appointed Investment Manager of a trust hereunder shall deliver a written instrument to Trustee indicating acceptance and agreement that all powers conferred upon such Investment Manager will be exercised in a fiduciary capacity for the exclusive interest of the beneficiaries. The Investment Manager need not inquire into the Trustee's performance of its duties.
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The Investment Manager shall be entitled to fair and reasonable compensation for the services it renders as Investment Manager. The amount of compensation shall be an amount equal to the customary and prevailing charges for services of a similar nature during the same period of time and in the same geographic locale.
Section 11.08 Special Provisions for Cumberland Trust & Investment Company
The provisions of this Section apply when CUMBERLAND TRUST & INVESTMENT COMPANY it is serving as Trustee under this Agreement.
The provisions of this Section shall control if the provisions of this Section conflict with the other provisions of this agreement, unless to do so would clearly be contrary to the intent as expressed in this agreement.
(a) Authority of Investment Manager
The Investment Manager shall exercise all powers referenced in this trust as being held by the Trustee that are related to the marketable assets including but not limited to stocks, bonds, and other liquid assets within the Trust. The Trustee shall have no responsibility or authority to invest the trust property or to make investment decisions, except as directed by the Investment Manager.
(b) Trustee Indemnification and Hold Harmless
The Trustee shall not be liable for any loss resulting from the making, retention or management of any investment or other act within the authority of the Investment Manager. The Trustee is not responsible to any trust beneficiary, for the retention, sale, purchase or management of assets, or for any actions incident thereto, that are done pursuant to the direction of, or within the authority of, the Investment Manager. The Trustee shall be fully indemnified from the trust assets and held harmless against liability for any and all claims, damages, losses, demands, causes of action, fines, taxes, costs and expenses sustained or incurred by the Trustee by reason of the actions or inaction of the Investment Manager or the Trustee's reliance upon such actions or inaction, whether or not such reliance is deemed negligence or a breach of fiduciary duty. Such indemnification extends to, but is not limited to, the Trustee's costs of defending against claims and legal actions, including court costs and reasonable attorneys' fees. The Trustee is afforded this limited liability and indemnification in addition to the Trustee's exclusion from liability pursuant to applicable law, including but not limited to Tennessee Code Annotated Sections 35-3-122, 35-3-123, 35-14-111 and 35-15-807, all of which shall specifically apply to the trusts created hereunder.
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(c) Qualifications of Investment Manager Any successor Investment Manager must be: (i) an investment partnership, where the general partner of such partnership is an individual or entity with assets under management, on a discretionary basis, either as a fiduciary or investment Manager, exceeding Fifty Million Dollars ($50,000,000) at the time of the investment, (ii) a mutual fund, where the sponsor of such fund is an individual or entity with combined assets under management, on a discretionary basis, either as a fiduciary or investment manager, exceeding Fifty Million Dollars ($50,000,000) at the time of the investment, (iii) an individual or entity with assets under management, on a discretionary basis, either as a fiduciary or investment manager, exceeding Fifty Million Dollars ($50,000,000) at the time of the investment, or (iv) an individual or entity who, although not managing, on a discretionary basis, combined assets exceeding Fifty Million Dollars ($50,000,000), invests the entire account in a manner described in (i), (ii) or (iii) above, or any combination thereof. (d) Administrative Provisions Any notices hereunder shall be made by a written instrument, effective upon delivery. A removed or resigning Trustee or Investment Manager shall effect a transfer of assets within forty-five (45) days of such notice. The removal of a Trustee or Investment Manager shall not be dependent upon the showing of cause, the approval of any court, or the appointment of guardians for any persons under an incapacity or unborn. No successor Trustee or Investment Manager shall be liable or responsible in any manner for any acts or defaults of any predecessor Trustee or Investment Manager.
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Article Twelve General Provisions
Section 12.01 Maximum Term for Trusts
Notwithstanding any other provision of this agreement, unless sooner terminated under other provisions hereof, any trust created under this agreement shall terminate upon the expiration of the longest period that property may be held in trust under this agreement without violation of the applicable Rule Against Perpetuities.
If the maximum term for trusts is determined by reference to the death of the last to die among a group of individuals living on the date of death, those individuals shall consist of the descendants of the maternal grandparents of GILBERTa KELLY LOPEZ and the descendants of John D. Rockefeller, living at the date of death of GILBERTa KELLY LOPEZ.
At that time, the remaining trust property shall vest in and be distributed to those persons then entitled to mandatory distributions of net income of the trust and in the same proportions. If none of the beneficiaries are entitled to mandatory distribution of net income, the remaining trust property shall vest in and be distributed to the beneficiaries then eligible to receive discretionary distributions of net income of the trust in equal shares per capita.
Section 12.02 Spendthrift Provision
During the lifetime of GILBERTa KELLY LOPEZ, the interest of GILBERTa KELLY LOPEZ or the interest of any other beneficiary in the trust property or the income of the trust property may not be transferred, assigned, pledged or mortgaged, whether voluntary or involuntary, before the Qualified Trustee actually distributes the property or income to the beneficiary,
After the death of GILBERTa KELLY LOPEZ, neither the income nor the principal of the trust property shall be assigned, anticipated or alienated in any manner by any beneficiary; whether voluntary or involuntary, nor shall it be subject to attachment, bankruptcy proceedings or any other legal process, or to the interference or control of creditors or others.
Nothing contained in this Section shall restrict in any way the exercise of any power of appointment granted in this agreement.
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Section 12.03 Contest Provision
If, after receiving a copy of this paragraph, any person shall in any manner, directly or indirectly, attempt to contest or oppose the validity of this agreement, including any amendments thereto, or commences, continues or prosecutes any legal proceedings to set this agreement aside, then such person shall forfeit his or her share, cease to have any right or interest in the trust property, and shall for the purposes of this agreement be deemed to have predeceased GILBERTa KELLY LOPEZ.
Section 12.04 Changing the State of Administration
To minimize any tax in respect of any trust created hereunder, or any beneficiary thereof, or for such other purpose as it deems appropriate, the Trustee may, in its sole and absolute discretion, remove all or any part of the property of, or the situs of administration of, such trust from one jurisdiction to another and elect, by an instrument filed with the trust records, that thereafter such trust shall be construed, regulated and governed as to administration by the laws of such other jurisdiction.
If necessary to such change of situs, a corporate fiduciary in the new situs may be appointed as a Trustee hereunder by the unanimous consent of all of the beneficiaries then entitled to receive distributions of net income under such trust who have attained age 21 and are not incapacitated and if there are no such beneficiaries, by the Trustee then serving.
Section 12.05 Definitions
For purposes of this agreement, the following definitions shall apply:
(a) The Act
The Act means the Tennessee Investment Services Act of 2009, as amended, or any corresponding Tennessee statute enacted after the date of this agreement. A reference to a specific section of the Act refers not only to that section but also to any corresponding provisions of any Tennessee statute enacted after the date of this agreement, as amended.
(b) Adopted and Afterborn Persons
A legally adopted person in any generation and his or her descendants, including adopted descendants, shall have the same rights and be treated in the same manner under this agreement as natural children of the adopting parent, provided such person is legally adopted prior to attaining the age of 18 years.
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A fetus in utero that is later born alive shall be considered a person in being during the period of gestation.
(c) Agreement
The terms "this agreement" shall refer to this agreement and all trusts created under the terms of this agreement.
(d) Descendants
The term "descendants" shall include a person's lineal descendants of all generations.
(e) Education
For purposes of this agreement, the term "education" shall include, but not be limited to:
Enrollment at private elementary, junior and senior high schools, including boarding schools;
Undergraduate and graduate study in any field at a college or university;
Specialized, vocational or professional training or instruction at any institution, including private instruction; or
Any other curriculum, institution or activity that the Trustee, in its sole and absolute discretion, deems useful for developing the abilities and interest of the beneficiary including, without limitation, athletic training, musical instruction, theatrical training, the arts and travel.
For purposes of this agreement, education shall also include distributions made by the Trustee for expenses such as tuition, room and board, fees, books and supplies, tutoring, transportation, and reasonable allowance for living expenses.
(f) Incapacity
A person shall be deemed incapacitated in the following circumstances, except as otherwise provided in this agreement:
(1) The Opinion of Two Licensed Physicians
An individual shall be deemed incapacitated whenever, in the opinion of two licensed physicians, such individual is so incapacitated that he or she is unable to effectively
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manage his or her property or financial affairs whether such incapacity is a result of age, illness, use of prescription medications, drugs or other substances, or any other cause.
An individual shall be deemed restored to capacity whenever that individual's personal or attending physician signs a written opinion that such individual is able to effectively manage his or her property and fmancial affairs.
(2) Court Determination
An individual shall be deemed incapacitated if a court of competent jurisdiction determines that such individual is legally unable to effectively manage his or her property or fmancial affairs.
(3) Detention, Disappearance or Absence
An individual shall be deemed incapacitated whenever he or she cannot effectively manage his or her affairs due to such individual's unexplained disappearance or absence for more than 30 days, or whenever he or she is detained under duress.
An individual's disappearance or absence or detention under duress may be established by an affidavit of any current or successor Trustee named in this agreement, or, if no Trustee is serving under this agreement, by the affidavit of any beneficiary under this agreement. The affidavit shall describe the circumstances of an individual's detention under duress, or disappearance or absence and may always be relied upon by any third party dealing in good faith with the Trustee in reliance upon the affidavit.
(g) Income Beneficiary
For purposes of this agreement "income beneficiary" shall mean any beneficiary of a trust who is then entitled to receive mandatory distributions of the net income of such trust or who is eligible to receive discretionary distributions of such net income.
Unless otherwise provided in this agreement, a "majority" of the income beneficiaries shall mean any combination of income beneficiaries who, if all accrued net income were distributed on the day of a vote by the beneficiaries, would receive more than 50% of that accrued net income. For purposes hereof, beneficiaries who are eligible to receive discretionary distributions of net income shall be deemed to be recipients of such income in equal shares.
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(h) Independent Trustee
For any trust created under the terms of this agreement, "Independent Trustee" means a Trustee who is not an Interested Trustee as defined in subparagraph (i). Only an Independent Trustee may exercise those powers granted exclusively to an Independent Trustee. Whenever this agreement specifically prohibits an Interested Trustee from exercising discretion or performing an act, then only an Independent Trustee may exercise that discretion or perform that act. An Independent trustee shall not be liable to any person for any good faith exercise or nonexercise of its discretion under this agreement.
(i) Interested Trustee
For any trust created under the terms of this agreement, "Interested Trustee" means a Trustee who is a transferor of property to the trust, including a person whose qualified disclaimer resulted in property passing to the trust, a beneficial)' of the trust or a Trustee who the beneficial)' can remove and replace by appointing a Trustee that is related or subordinate to the beneficial)' within the meaning of Section 672(c) of the Internal Revenue Code.
For these purposes a beneficial)' of a trust means a person who pursuant to the terms of the trust is or in the future may be eligible to receive income or principal from the trust. A person shall be considered a beneficial)' of a trust even if he or she has only a remote contingent remainder interest in the trust. However, a person shall not be considered a beneficiary of a trust if the person's only interest is as a potential appointee under a testamental)' power of appointment.
0) Internal Revenue Code and Treasury Regulations
References to the "Internal Revenue Code" or "Code" or to provisions thereof are to the Internal Revenue Code of 1986. References to the "Regulations" or "Regs" are to the Treasury Regulations under the Internal Revenue Code. If by the time in question a particular provision of the Internal Revenue Code has been renumbered, or the Internal Revenue Code has been superseded by a subsequent federal tax law, the reference shall be deemed to be made to the renumbered provision or to the corresponding provision of the subsequent law. A similar rule shall apply to references to the Regulations.
(k) Personal Representative
As used in this agreement, the term "Personal Representative" shall mean a person's guardian, conservator, executor, administrator, Trustee, or any other person or entity personally representing a person or the person's estate.
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(I) Per Stirpes
Whenever a distribution is to be made to a person or a person's descendants per stirpes, the distribution shall be divided into as many shares as there are then living children of such person and deceased children of such person who left then living descendants. Each then living child shall receive one share and the share of each deceased child shall be divided among such child's then living descendants in the same manner.
(m) Qualified Retirement Accounts
"Qualified Retirement Benefits" means any qualified retirement plan, individual retirement account ("IRA") or other retirement arrangement subject to the "minimum distribution rules" of Section 401(a)(9) of the Code, or other comparable provisions of law.
(n) Qualified Trustee
A Qualified Trustee means a person who:
In the case of a natural person, is a resident of the state of Tennessee, or, in all other cases, is authorized by the law of the state of Tennessee to act as a trustee and whose activities are subject to supervision by the Tennessee department of financial institutions, the federal deposit insurance corporation, the comptroller of the currency, or the office of thrift supervision or any successor thereto;
Maintains or arranges for custody in the state of Tennessee of some or all of the property of this trust, maintains records for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation of required income tax returns for the trust, or otherwise materially participates in the administration of the trust; and
Is not the Trustmaker or GILBERTa KELLY LOPEZ.
(0) Shall and May
Unless otherwise specifically provided in this agreement or by the context in which used, the word "shalf' is used in this agreement as a command, directive or requirement, and the word "may" is used in this agreement as allowing or permitting, but not requiring, the taking or omission of any action. In the context of a Trustee, the word "may" shall mean that the Trustee is acting in that Trustee's sole and absolute discretion unless otherwise stated in this agreement.
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(p) Settlor "Settlor" shall have the same legal meaning as "Grantor," "Trustor" or any other term referring to the maker of a trust. (q) Trust The terms "this trust" or "this trust agreement" shall refer to this agreement and all trusts created under the terms of this agreement. (r) Trustee The term "Trustee" refers to the Trustee named in Article One as well as any successor, substitute, replacement or additional person, corporation or other entity from time to time acting as the Trustee, whether there shall be one or more Trustees acting from time to time. (s) Trust Property The words "trust property" or words of similar import shall be construed to mean all property at any time held by the Trustee under this agreement, including all property that it may acquire at any time from any source.
Section 12.06 General Provisions The following general matters of construction shall apply to the provisions of this agreement:
(a) Duplicate Originals This agreement may be executed in any number of counterparts, each of which shall be deemed to be an original. Any person may rely upon a copy of this agreement certified under oath to be a true copy by the Trustee, to the same effect as if it were the original. (b) Gender, Number, Captions Words denoting the masculine or feminine gender shall be construed to mean or include the opposite gender, and the singular fonn shall be construed to include the plural and the plural the singular, as the context requires or admits. The captions of Articles, Sections, and Subsections used in this agreement are for reference purposes only and shall have no effect on the interpretation of this agreement.
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(c) Governing State Law This agreement shall be governed, construed and administered according to the laws of the State of Tennessee as from time to time amended, except as to trust property required by law to be governed by the laws of another jurisdiction and unless the Trustee elects to change the State of Administration as provided in this Article. (d) Notices Whenever this agreement provides for notice such notice shall be in writing and shall be effective when personally delivered and receipt of delivery received, or when mailed postage prepaid by certified mail, return receipt requested, to the last known address of the party requiring notice. (e) Severability The invalidity or unenforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision of this agreement. If a court of competent jurisdiction determines that any provision is invalid, the remaining provisions of this agreement shall be interpreted and construed as if any invalid provision had never been included in this agreement. (f) Tennessee Uniform Trust Code Except as provided below, the terms of this agreement shall control if there is a conflict between the terms of this agreement and the Tennessee Uniform Trust Code, codified as Section 35-15-101 through Section 3515-1105, Tennessee Code Annotated, unless to do so would clearly be contrary to my intent as expressed in this agreement. Notwithstanding the above, the provisions of the Tennessee Uniform Trust Code identified in Section 35-15-105, Tennessee Code Annotated, shall control if those provisions conflict with the provisions of this agreement.
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This agreement was executed on the day and year first written above. The foregoing irrevocable trust agreement correctly states the terms and conditions under which the trust property is to be held, managed, and disposed of by the Trustee. The Court approves this irrevocable trust in all particulars, and requests the Trustees to execute it.
Accepted by: CUMBERLAND TRUST & INVESTMENT COMPANY, Trustee
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Confirmed and Approved by: BERT L. ECHOLS, United
States District Court for the Middle District of Tennessee
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One Dollar Cash

Schedule A

A-I
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CUlv03ERLAND TR1JST AND INVEST:NIENT caMPANY
Fee Sc.hedule, for Fiducial'Y and Administrative Sel'vices On Coud Settleme::1t Tl'llStS. Speciul Needs Trl.ll'Sts, and Special Care Tnlsts
For (lCt:OW'llJ' nqw)'ing COUl'! se.t/l~numt, special needs, 01' special care ffusf administrariol1 and
separafe Investment advisor.\' or managers
.20% On the fh'st $5.000,000
If the acccl\:nt exceeds $5 m.miol1) f(~e negotiated
:rvfinimum Fe.e;
T~.x Coordination ',Flt?es:
Fees for gnthering, coordinating and copyi.ng all 'the. nece3::Jcu'9 domnne.lifMion required for pr~'{.l.'\ration of tax returns, fOfWal'ding' sante to YOUl' till{ pl'eparer. revle,wlng: prepat'ed bx returns fbt accur~ OJ' and signing the.rn as taxpayel', will be $200 annually pel' (v~count.
AddH.ion~1 SCI'vice Fees:
Ft';e:) for services associated with closely held 01' other uoiqne aS$et~, n(Y,t\U'Cd reso\)l'ces, real eS!i~tt intel'ests~ IlloltgageS, notes and insul'anc.e polic.ies w:e a~se$sed 8epa\'al~.ly,
We 1'eSt~rve the right to charge nddition"l fe~s fot' l'end~r1llg any \ul\1sual or extraordjn~uy sel'Ylces taking lnto I~C(~:oum The tirn,f.~ involved~ patticulnt l'esponsibillty assurned~ and the c(lInple-;,'dt,Y of' issues involved.

11l10S

A Spechl! Place to Pllt Your Trust
Suil~ 12(1, WOQdml)ol t~ntr~, • 104 WOOdfl1Q~I.B()Ulm'a.r<l. Na.~htillil, L'ermB'asee 'nZ05
61 5.763.2540 ~ fax: 615.783.255~) , en'Illil: lu(o@r:unloorlandrI'Usl.c,om
EXHIBIT 1

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CUl\1BERLANfJ TRU8T AND INVEST!v!ENT CaMPANY
'Fee Sc.hedule. for Fiducial'Y and Administrativ(: Services On COUt,t Settlemt!::lt Tl'llSts. Specil.ll Needs Trl.lt3ts, and Special Care Trusts
For (lCI,;OWUJ' nqw)'ing court se.t1I~m(j.nt, sptlCioZ needs, QI' special tOte trust administrarion ,:md
separare Investment advisors or managtts
.80% on the fil'St$5.000,OOO
If tht aCC(l\~nt exceeds $5 m.miou) f(~e negotiated
~1inimum Fe,e;
T~x Coordination }'t?es:
Fees for g{lthering) coordinating and copyi.ng a.ll·[h~, necest-l(U'9 d(lGULne.l1fMiou required for pn~k)"1.ration of tax l'etums, f(lfWl.'tl'ding sant~, to YOU1' tal{ pl'eparer. revle·wlng t)rep8red tt1X retornS fbl' accuracy An.d signing them as taxptiyel', will b(~ $200 annually pel' account.
Adl.Htion~1 SC1'vlce Fees:
Fee;') fot' services associated "'"ith closely held or other unique as:$et~J nnt\mtl reSl)\ll'ce$, real e5l(~te interests, rlloltgages, notes and insul'anc.e policies i,t1'~ a~sessed aeparl'llely,
Other Ex:tl':Hfrdinary Serv(ccs:
We reSt~l've the right to charge f.ldditioll"l fe~s fot' l'end~rlllg any Ul1wmal or exh'aordinary sel'Yioen. taking into !?'cl~:oum The tim.(~ involved~ patticulnr' l'esponsibHlty assurned~ and the cOInple:xity of' issues involved,

111/05

A Spedal Place to Pu:t Your Trust
Suil~ 12(1, WOf}uml)nl t:;entr~, • 104 Woodmo,1\( HOUlm'ard • NMhtlllil, t~nnBssee 37Z05 61;.763,2540 ~ (llX: 6\5.7S3,25S~) , emllil: IlIro@cunlbcrI.andrrllsl,c,om

EXHIBIT 2

Case 3:07-cv-00799 Document 517-2 Filed 02/09/10 Page 1 of 1 PageID #: 10348

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY,

)

as next friend and trustee of THE GILBERTO )

KELLY LOPEZ IRREVOCABLE TRUST, )

)

Plaintiff,

)

)

)

v.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

Case No. 3:07-0799 Judge Echols

MEMORANDUM

On March 12, 2010, after a two week trial, a jury returned a verdict in favor of Defendant

Genesis Learning Centers (“Genesis”) on Plaintiff Gilberto Lopez’1 claims for violation of Title IX,

20 U.S.C. § 1681(a), and negligence. Pending before the Court are post-trial motions, including,

in order of filing, Genesis’ Motion for Costs (Dokcet Entry No. 556) and Motion for Attorneys’ Fees

(Docket Entry No. 559), a nd Plaintiff’s Motion for New Trial (Docket Entry No. 573). 2 Those

Motions have been fully briefed by the parties and are ripe for consideration.

1The actual Plaintiff is the Cumberland Trust and Investment Company as next friend and trustee of the Gilberto Kelly Lopez Irrevocable Trust. For simplicity, the Court refers to Plaintiff as “Gilberto” or Plaintiff.
2With the Motion for New Trial, Plaintiff fildea Motion for Hearing (Docket Entry No. 574), to which Genesis objects (Docket Entry No. 584). That Motion will be denied because the parties explain their respective positions in the written f ilings, the Court is f ully aware of the f acts underlying this litigation, and the Court finds that oral argum ents would not be of be nefit in resolving the Motion for New Trial.
1

A. Genesis’ Motion for Costs Pursuant to Rule 54(d) of the Fede ral Rules of Civil Procedure and 28 U.S.C. § 1920,
Genesis moves the Court for an award of costs in the amount of $30,144.35. Defendants’ Motion does not comply with Local Rule 54.01.
Rule 54.01(a) requires counsel to file a cost ibll with the Clerk for the assessment of taxable costs pursuant to 28 U.S.C. § 1920. The rule also contains specific pr ocedures to be utilized in seeking costs, and leaves the assessment of costs in the first instance to the Clerk. Once the Clerk makes an initial assessm ent, the parties can take exception to the Cler k’s action. Only after the Clerk makes a final decision as to costs may the request for costs be presented to the Court.
Because of Genesis’ failure to comply with the Local Rule, its request for costs will be denied. However, the initial f iling was m ade within thirty (30) days of the Court’s entry of Judgment as required by Local Rule 54.01(a), and Genesis will be afforded additional time to make a revised cost filing which complies with the Local Rules. B. Genesis’ Motion for Attorneys’ Fees
Genesis seeks attorneys’ fees in the amount of $358,997.00 because it was the prevailing party on Plaintiff’s Title IX claim. This figure is based upon 846.80 hours in attorney and paralegal time which Genesis claims was necessary to defend this action.
Genesis argues that Plaintiff’s pursuit of a Title IX claim against it was unreasonable and groundless. Genesis notes that the Title IX claimwas the only federal claimasserted against it and posits that the m otivating factor for Plaintiff’s continued pursuit of the Title IX claim was the potential for an award of attorneys’ fees if Plaintiff prevailed on that claim. Genesis also observes
2

that without the Title IX claim, this would have been merely a negligence case over which the Court
would have lacked jurisdiction.
Section 1988 of Title 42 provides that “[i]n any action or proceeding to enforce . . . title IX
of Public Law 92-318 . . . , the coutr, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as a partof the costs.” 42 U.S.C. § 1988(b). With regard
to the award of attorneys’ fees under Section 1988, the Sixth Circuit has stated:
Although § 1988 ordinarily entitles a prev ailing . . . plaint iff to recover reasonable attorney fees, the Suprem e Court has held that a prevailing defendant should recover only upon a finding by the district court that “‘the plaintiff’s action was frivolous, unreasonable, or wit hout foundation, eve n though not brought in subjective bad faith.’” Hughes v. Rowe , 449 U.S. 5, 14 (1980)(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)); Wayne v. Village of Sebring, 36 F.3d 517, 530 (6 th Cir.1994), cert. denied, 514 U.S. 1127 (1995); Tarter v. Raybuck, 742 F.2d 977, 985 (6th Cir.1984). In other language the Court has stated, “a plaintiff should not be a ssessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg, 434 U.S. at 422. In applying this standard, courtsmust balance the policy of encouraging the pursuit of valid civil rights claims against the public interest in discouraging baseless or vindictive lawsuits. Accordingly, theSupreme Court has cautioned district courts considering prevailing defendants' applications for attorney fees t o “ ‘resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.’” Christiansburg, 434 U.S. at 421-22, quoted in Wayne, 36 F.3d at 530.
White v. City of Ypsilanti, 1997 WL 70523 at *2 (6th Cir. 1997). In light of this, “[a]n award of
attorney’s fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be
limited to truly egregious cases of misconduct.” Jones v. Continental Corp., 789 F.2d 1225, 1232
(6th Cir.1986).
Genesis claims it is entitled to an award of attorneys’ fees because Plaintiff failed to prove
that Gilberto was subjected to sexual harassment which was so severe, pervasive, and objectively
3

offensive that it deprived him of access to educational opportunities, or that Genesis had actual knowledge of the sexual harassment but was deliberately indifferent to the same. Genesis notes that these are required elem ents to prove a Title IX claim in accordance with the Suprem e Court’s decision in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
Genesis’ arguments are essentially the arguments presented to the Court in the context ofthe parties’ cross-motions for summary judgment and, in fact, Genesis generally relies upon the same cases to support i ts position. The Court denied Genesis’ Motion for Sum mary Judgment on Plaintiff’s Title IX claim.
With respect to the severe, pervasive and objectively offensive nature of the harassment, the Court pointed out in its summary judgment ruling that“[m]ost courts which have addressed the issue have concluded that even a single incident of rape is sufficient.” Lopez v. Metro. Govt. of Nashville, 646 F.Supp.2d 891, 913 (M.D. Tenn. 2009)(collecting cases). The Court also observed that the Sixth Circuit in Soper v. Hoben, 195 F.2d 845 (6th Cir. 1999) held that “‘[w]ith respect to the first prong of the Da vis test’ evidence that plaintiff was raped ‘obviously qualifies as being severe, pervasive and objectively ofensive sexual harassment that could deprive [plaintiff] of access to the educational opportunities provided by her school.’” Id . at 913-14. At trial, the jury was presented with a videotape of the incident and from that tape the jury could easily have concluded that Kolby f orced Gilberto to perf orm fellatio on him. Therefore, there was evidence which supported Plaintiff’s contention that the sexual harassment was severe, pervasive and offensive.
As for the deprivation of educational opportunities element, that, too, was addressed in the summary judgment rulings. The Court observed, “withdrawal from school is a concrete and negative effect on the victim’s education.” Id. at 914. At trial, the evidence indicated that, after the
4

incident, Gilberto transferred to a residential treatment facility. While Genesis sought to show that the transfer was a result ofGilberto’s myriad of problems and not related to the bus incident, the jury could have concluded otherwise.
Finally, Genesis asserts that Plaintiff’s Title IX claim was f rivolous, unreasonable, or groundless because Plaintiff failed to show thatGenesis had actual knowledge of sexual harassment and was deliberately indifferent despite that knowledge. In doing so, Genesis focuses exclusively upon what it did or did not know about Kolby harassingGilberto. However, this Court rejected the very same myopic view of knowledge in the sum mary judgment ruling. In doing so, the Court observed that while some courts after Davis had indicated that “‘a school m ust be aware that a particular individual was subjected to a sexually hostile environment or that a particular individual was the perpetrator of sexual harassment . . . [t]he more accepted view, and the one this Court adopts is that, to be liable, ‘the institution must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff’s legal claim is based.’” Id. at 915 quoting, Staehling v. Metro. Govt. of Nashville, 2008 WL 4297939 at *10 (M .D. Tenn. 2008). The Court went on to hold that Title IX liability “‘could be based on the recipient’s knowledge of, and deliberate indifference to, a particular harasser’s conduct.” Id. (italics in original). At trial, Plaintiff presented numerous instances (by his count nine) wherein Genesis’ administrators and/or teachers knew about sexual misconduct by Kolby and from that evidence a jury could conclude that Kolby was a known harasser who should have been subjected to more restraints by Genesis.
5

Plaintiff cannot be faulted for pursuing a Title IX claimagainst Genesis. Plaintiff was given the green light to do so by the Court and pursuit ofthat claim was not egregious. Accordingly, the Court will exercise its discretion and deny Genesis’ request for an award of attorneys’ fees. C. Gilberto’s Motion for a New Trial
Plaintiff seeks a new trial for three basic r easons. First, Plaintiff argues that Gene sis’ reliance on Kolby’s intentional act as a bar to Plaintiff’s negligence claim was improper since the same was an affirmative defense which was not pled. Second, Plaintiff argues that the Court erred in instructing the jury with regard to Kolby’s intentional act. Finally, Plaintiff argues that the jury verdict in favor of Genesis is against the weight of the evidence.
1. Intentional Act As Affirmative Defense, Waiver Rule 8 of the Federal Rules of Civil Procedure lists nineteen affiramtive defenses which must be pled, Fed. R. Civ. P. 8(c), and “intentional act” is not one of them. The list, however, is not all encompassing for the rule requires a defendant to plead “any other matter constituting an avoidance or affirmative defense.” Id. Generally, affirmative defenses are distinguished from general denials because they require the pleading of facts which are extrinsic to plaintiff’s cause of action. See, In re Sterten, 546 F.3d 278, 284 (3d Cir. 2008). Requiring that fafirmative defenses be pled “gives the opposing party notice and an opportunity to respond.” Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Since the “intentional act” defense was interposed in an effort to defeat Plaintiff’s negligence claim, the Court is to look to Tennessee law to detremine whether an intentional act is an affirmative defense to such a claim. See, Roskam Baking Co. v. LanhamMach. Co, 288 F.3d 895, 901 (6th Cir. 2002)(in determining whether a defense to a state claim is an affirmative defense, state law defines
6

the nature of the defense while Rule 8(c) provides the manner and time in which the defense must be raised). The Tennessee Supreme Court has specifically stated that “a negligent defendant may, of course, raise a third party’s intentional act to refute elements of the plaintiffs’ negligence claim such as duty and causation[.]” Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn. 1997)(emphasis added). Because the question of intentional acts goes to the issue of whether Plaintiff can prove the elements of a negligence claim , it is not an affi rmative defense which must be specifically pled. Were it otherwise, a defendant in a negligence action would be required to plead, as affirm ative defenses, that (1) it owed no duty (or breached no duty) of care to the plaintiff; (2) that its conduct did not fall below the a pplicable standard of care; (3) that plaintiff suffered no harm ; (4) that defendant’s actions were not thecausation of any harm; and/or (5) that defendant’s actions were not the legal or proximate cause of any harm, whenever the defendant believes plaintiff cannot establish any one or more of these elements of a negligence case. That is clearly not the law as a defendant in its answer may merely deny that it was negligent.
Yet even if the intentional act of Kolby constituted an affirmative defense which Genesis should have pled in its answer, the “failure to raise an affirmative defense by a responsive pleading does not always result in waiver.” Moore, Owen, Thomas & Co. v. Coffey, 922 F.2d 1439, 1445 (6th Cir. 1993). Because the purpose of Rule 8(c) is to give notice, “[a] defendant does not waive an affirmative defense if the defense is raised at a time when plaintiff’s ability to respond is not prejudiced.” R.H. Cochran & Assoc., Inc. v. Sheet Metal Workers Int’l Assoc., 335 Fed. Appx. 516, 519 (6th Cir. 2009). In other words, there is no waiv er “when the plaintiff receives notice of the affirmative defense.” Seals v. General Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008).
7

In its Motion for Summary Judgment filed well over a year before trial, Genesis argued that the harm to Gilberto was not foreseeable specifically because Kolby engaged in an intentional act. (Docket Entry No. 170 at 17-18). Plaintiff understood this to be an issue as evidenced by the fact that in his own motion for summary judgment (also filed more than a year before trial), Plaintiff argued that under Turner, Genesis had a duty to exercise reasonable care to protect Gilberto and that “this duty included Defendants’ obligation to protectGilberto from the foreseeable intentional acts of a third party adult student with a recorded and known history of a ttempted sexual attacks on young boys on school buses[.]” (Docket Entry No. 184 at 29-30).
If this does not demonstrate that Plaintiff had notice the intentional acts of Kolby was an issue in regard to foreseeability, Genesis’ proposed jury instructions and proposed verdict form ,3 which were filed alm ost a year before the initial trial date, certainly placed Plaintiff on notice. Genesis tendered an instruction which read:
In this case, the defendants claim that Kolby Harris’s intentional act was the sole cause in fact and/or the proximate cause of the May 7, 2007 incident. Even though he has not offered evidence, it is necessary that you determ ine whether Kolby Harris’s intentional act was the sole cause infact and/or the sole proximate cause of the May 7, 2007 incident. (Docket Entry No. 383). Further, the first question on Genesis’ Proposed Verdict Form asked the jury whether “the actions of Kolby Harris were th e sole cause in fact, and/or the sole proxim ate cause of any damages sustained” by Gilberto. (Docket Entry No. 386). On Janua ry 27, 2010, in anticipation of the rescheduled trial set tocommence in March 2010, Genesis again filed proposed
3At the tim e of these f ilings, the Metropolitan Governm ent of Nashville and Davidson County (“Metro”) was still a Defendant in this action and the Defendants filed joint requests for jury instructions.
8

instructions and a proposed jury verdict formwhich used identical language specifically addressing
Kolby’s intentional act. (Docket Entry Nos. 495 & 496).
Given this record, Plaintiff was clearly placed on notice that Genesis intended to rely on
Kolby’s intentional act in an effort to show that it was not liable for any harm or injury to Gilberto.
Plaintiff’s present assertions (1) that Genesis somehow injected the inte ntional act issue as “an
untimely, backdoor maneuver to reintroduce the comparative fault of Harris”; (2) that such actions
somehow precluded Plaintiff’s counsel from presenting appropriate jury instructions on that issue
and its relationship to com parative fault; and/or (3) that Genesis’ actions prevented Plaintiff’s
counsel from developing argument or proof that Kolby’s alleged incompetence made him unable
to act intentionally are rejected as without merit.
2. Instructions Regarding Intentional Act
With regard to the intentional act of Kolby,Plaintiff argues in his Motion for New Trial that
the issue should have been presented “in the negligence charge as intervening or superseding cause,
as Plaintiff argued at trial[.]” (Doc ket Entry No. 572 at 1). In his accom panying brief, Plaintiff
writes:
A complete and accurate charge would have em ployed language of W hite v. Lawrence, a medical malpractice claim concerning a physician’s responsibility for the suicide of the plaintiff’s decedent:
. . . an independent intervening cause breaks the chain of proximate causation and thereby precludes recovery. The law is equally clear, however, that an intervening act, which is a normal response created by negligence, is not a superseding,intervening cause so as to relieve the original wrong doer of liability, provided the intervening act could have reasonably been foreseen and the conduct of [of t he original wrongdoer] was a substantia l factor in bringing about the harm. Accordingly, “an intervening act will not exculpate the original wrongdoer unless it is shown that the intervening act could not have been reasonably anticipated. W hether such an event or act constitutes an intervening cause is of r the jury to determine unless the
9

uncontroverted facts and inferences to be drawn fromthe facts make it so clear that all reasonable persons m ust agree on t he proper outcome.” 975 S.W.2d 525, 529-530 (Tenn. 1998)(internal citations omitted)(emphasis added). (Docket Entry No. 573 at 14). Apart from the foregoing excerpt, Plaintiff presents no authority which suggests that this Court’s instructions were wrong and no cogent argum ents which would indicate that this Court erred in the jury charge which addressed the intentional act of Kolby. With regard to White, Plaintiff highlights its language to the effect that a wrongdoer is not relieved from liability unless it is shown that theintentional act could not have been “anticipated.” However, whether an act is “anticipated” suggests taht the act must be “foreseeable,” and vice versa, and Tennessee cases frequently interchange “foreseeable” or “anticipated” (or variations of those words) in discussing negligence. See , McClenahan v. Cooley , 806 S.W .2d 767, 775 (Tenn. 1991)(“harm giving rise to the action could have reasonably been foreseen or anticipated”); Rathnow v. Knox County, 209 S.W.2d 629, 633 (Tenn. Ct. App. 2006)(“If an injury giving rise to a cause of action for negligence could not have reasonably been foreseen or anti cipated, then there is no proximate cause”). In this case, the jury was specifically instructedthat one ofthe issues it was to determine was whether Genesis proved “by a preponderance of thevidence that Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident on the bus and was not foreseeable by Genesis Learning Centers.” (Jury Charge at 12). Further, the jury was given a specific instruction relating to the intentional act of Kolby which read:
INTENTIONAL ACT BY THIRD PARTY In this case, Genesis Learning Centersclaims that Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident on the bus and was not foreseeable by Genesis Learning Centers.
10

Even though he has not offered evidence, it is necessary that you determine (1) whether Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident and (2) whether or not it was foreseeable.
The Defendant, Genesis Learning Centers, asserts and relies upon the intentional act by a third party, Kolby Harri s, and it has the burden to prove by a preponderance of the evidence that the thir d party’s act or a cts was the sole and proximate cause of the May 7, 2007 incident onthe bus and that said act or acts were not foreseeable. If Genesis Learning Centers fails to m eet this burden of proof, it cannot be exonerated by the intentional act of Kolby Harris. (Id. at 23). The jury was also given an instruction on foreseeabilit y which, among other things, informed them that “[a] risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom it owed a duty is probable.” ( Id. at 20). In the Verdict Form, the jury was instructed that if it found Genesis proved by a preponderance of t he evidence that Harris’ intentional act was the sole and proximate cause of the May 7, 2007 incident and it further found that Genesis proved the same to be unforeseeable, the jury was to return a verdict in favor of Genesis on the negligence claim , without apportioning any fault. Juries are presumed to understand and follow a court’s directions and instructions. United States v. Carter, 236 F.3d 777, 787 (6th Cir. 2001). In this case, the jury was clearly instructed that to absolve Genesis of liability due to Kolby’s in tentional act, the jury would have to find that Kolby’s act was the sole and proximate cause of the May 7, 2007 incident and that Genesis could not foresee (or anticipate) Kolby’s act. The Court does not read White as requiring anything more. Moreover, both White and Turner indicate that the conduct of a negligent defendant should not be compared with the intentional conduct of a third party, W hite, 975 S.W.2d at 531; Turner , 957 S.W.2d at 823, and thus it was proper for the Court not to have the jury com pare fault if it determined the proximate cause of Plaintiff’s injury was the unforeseeable intentional act of Harris.
11

3. Weight of the Evidence Finally, Plaintiff seeks a new trial on the grounds that the jury’s failure to find liability on Title IX and its determination that the intentional act of Kolby barred Plaintiff’s negligence claim was against the weight of the evidence. The request for a new trial underFed. R. Civ. P. 59 is governed by federal law, In re Brow, n 342 F.3d 620, 626 (6 th Cir. 2003), and is alm ost entirely within the di scretion of the trial court, Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 36 (1980). A new trial may be granted to rectify a “‘seriously erroneous result.’” Holmes v. City ofMassillon, 78 F.3d 1041, 1046 (6th Cir. 1996). “A ‘seriously erroneous result’ [is] evidenced by: ( 1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3)the trial being unfair to the moving party in some fashion, i.e. the proceedings being influenced byprejudice or bias.” Kusens v. Pascal Co., Inc., 448 F.3d 349, 367 n. 13 (6th Cir. 2006). In ruling on a motion for new trial, the Court “must compare the opposing proofs, weigh the evidence, and set aside the verdict only if it determ ines that the verdict is against the clear weight of theevidence.” United States v. L.E. Cooke Co,. 991 F.2d 336, 343 (6th Cir. 1993). The m otion should be denied if the jury reasonably could have reache d its verdict. Id. The verdict is not unreasonable simply because different inferences and conclusions could have been drawn from the evidence or because a differ ent result m ight have been m ore reasonable. Id. In this case, the Court cannot saythat the verdict is against theweight of the evidence or that the jury’s verdict in favor of Genesis was a “seriously erroneous result.” Twenty-three witnesses testified and numerous documents were introduced over the course of the nine-day trial and from
12

such evidence the jury could readily determine, as it did, that Genesis was not liable under Title IX or for negligence.
Plaintiff begins by arguing that Gilberto was subjected to a rape and suggests that the jury could not have reached any other conclusion based upon the weight of the testim ony presented. While the Court believes from the weight of the evidence that Kolby did in fact force Gilberto to perform fellatio, a jury could have determined otherwise since it viewed thetape (several times) and, as the Court pointed out in the summary judgment ruling, “the videotape is not conclusive.” Lopez, 646 F. Supp.2d at 914.
Even accepting that Gilberto was raped, the jury could have returned a verdict in favor of Genesis because there was ample evidence that it was not deliberately indifferent, or, for purposes of the negligence claim, that Kolby’s actions were not reasonably foreseeable to Genesis. In this regard, there was abundant evidence fromwhich the jury could conclude that real responsibility for the safety of Gilberto when he left Genesis rested with Metro, and not Genesis.
The relationship between Genesis and Metro was governed by a contract and that contract specifically excluded transportation. The bus on which the incident occurred was a Metro school bus, driven by a Metro school bus driver. Metro decided the route the buses were to take and decided which students were to be assigned to a bu.s Further, Metro had a manual which the drivers were supposed to follow and that manual indicated that there was only to be one child per seat on special needs buses. From such evidence, the jury could have easily placed responsibility for the entire incident on Metro instead of on Genesis.
Given the fact that transportation was Metro’s responsibility, the jury could also conclude that Genesis did all that it could in relation to school bus safety since the evidence showed that, for
13

years, Genesis requested that monitors be placed on Metro buses. Genesis did so because the students were in a highly structured environment while at Genesis,but rode on buses which Genesis viewed to have less than adequate supervision. Despite those reque sts, Metro chose not to place monitors on school buses until after this incident occurred.
The jury could also have easily determined that the incident was the result ofa flukish series of events for which Genesis was not responsible. On May 7, 2007, the regul ar bus driver, Chris Gaines (“Gaines”), was absent and he was replacedby Gloria Smith (“Smith”). Gaines testified that he enforced the one child per seat rule and would not have allowed Gilberto to wander back to Kolby’s seat. Smith, the substitute bus driver, agreed that the policy called for only one student per seat and that Gilberto should not have been allowedto move seats and sit next to Kolby. At the time the school bus left Genesis, Gilberto was sitting alone in his designated seat at the front of the bus three rows ahead and on the opposite side of the bus from Kolby. It was Metro bus driver Smith who allowed Gilberto to move, and Smith who did not intervene once she saw Gilberto sitting next to Kolby.
The jury could also determ ine that Kolby f orcing Gilberto to perf orm fellatio was not reasonably foreseeable given Genesis’ knowledge of Kolby’s past. Kolby had been at Genesis for nearly a year, without being involved in a sim ilar incident. What information Genesis did have about Kolby was that, while he had been involved in prior instances of sexual activity, that sexual activity involved consensual sexual activity with age-appropriate fem ales, and did not involve forcing himself on younger, male students, or at least a jury could have so found.
The foregoing are but some of the reasons whythe jury may have found in favor of Genesis and any one of those reasons would have been suffi cient. Having presided at the trial, the Court
14

cannot say that the jury reached a verdict which was contrary to the evidence and certainly cannot conclude that the jury’s decision was against the “clear weight of the evidence,” or that it reached a “seriously erroneous result” so as to warrant a new trial. D. Conclusion
On the basis of the foregoing, Genesis’ Motion for Costs (Docket Entry No. 556) will be denied without prejudice. Genesi s’ Motion for Attorneys’ Fees (Docket Entry No. 559) will be denied. Plaintiff’s Motion for New Trial (Docket Entry No. 573) and the accompanying Motion for Hearing (Docket Entry No. 574) will also be denied.
An appropriate Order will be entered. ____________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
15

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GILBERTO LOPEZ, by and through the )

Cumberland Trust & Investment Company )

as next friend and trustee of The Gilberto )

Kelly Lopez Irrevocable Trust

)

)

v.

)

)

GENESIS LEARNING CENTERS

)

No. 3-07-0799

O R D E R

On November 10, 2010, the parties filed a stipulation of dismissal (Docket Entry No. 601). As a result, the telephone conference call with the Court, scheduled by order entered November 3, 2010 (Docket Entry No. 609) was CANCELLED.
Inasmuch as a consent decree between intervening United States of America and defendant Metropolitan Government of Nashville and Davidson County ("Metro") was entered on February 9, 2010 (Docket Entry No. 516), and the plaintiffs' claims against defendant Metro were dismissed by order entered February 9, 2010 (Docket Entry No. 517), all claims in this case have now be en resolved.
Therefore, this case is DISMISSED with prejudice. This order shall constitute the final judgment in this case. It is so ORDERED.

JULIET GRIFFIN United States Magistrate Judge

Case 3:07-cv-00799 Document 611 Filed 11/15/10 Page 1 of 1 PageID #: 13058

 
 Lopez v. Metropolitan Government of Nashville, Not Reported in F.Supp.2d (2008)

2008 WL 913085 Only the Westlaw citation is currently available.
United States District Court, M.D. Tennessee,
Nashville Division.
Kimberly LOPEZ, as guardian, next friend and parent of Gilbert Lopez a minor, individually, et
al., Plaintiffs, v.
METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, and Genesis
Learning Centers, Defendants.
No. 3:07-0799. | April 1, 2008.
Attorneys and Law Firms
Malcolm L. McCune, Robert T. Homlar, Blackburn & Mccune, PLLC, Nashville, TN, for Plaintiffs.
Francis Howard Young, James W.J. Farrar, Metropolitan Legal Department, Keith W. Blair, Thomas F. Mink, II, Taylor, Pigue, Marchetti & Mink, PLLC, Nashville, TN, for Defendants.
William Gary Blackburn, Blackburn & Mccune, PLLC, Nashville, TN.
Opinion
ORDER
ROBERT L. ECHOLS, District Judge.
*1 Gilbert Lopez, a nine-year old special needs child suffering from autism, was allegedly forced to perform oral sex on a nineteen-year old student while both were riding home on a school bus for special needs children. As a result, suit was filed against Defendant Board of Education for the Metropolitan Government of Nashville and Davidson County (“Metropolitan Government”) in the Davidson County Circuit Court. In the purported class action Complaint filed in state court, Plaintiffs alleged a state law cause of action under Tennessee’s Governmental Tort Liability Act, T.C.A. § 29-20-101, et seq., and a federal claim under 42 U.S.C. § 1983 for violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The inclusion of a federal claim prompted

Defendant Metropolitan Government to remove the action to this Court.
Once the case was removed to this Court, Defendant Metropolitan Government filed a Motion to Dismiss (Docket Entry No. 10) on August 24, 2007.1 Thereafter, Plaintiffs filed an Amended Complaint (Docket Entry No. 15) making essentially the same claims against Defendant Metropolitan Government. On September 19, 2007, Defendant Metropolitan Government filed a Motion to Dismiss the Amended Complaint (Docket Entry No. 16). Thereafter, Plaintiffs filed a Renewed Motion for Class Determination (Docket Entry No. 31), after Plaintiffs voluntarily withdrew their earlier request for class certification without prejudice (Docket Entry No. 29).

1

This motion was denied without prejudice when

Plaintiffs’ motion seeking to amend their Complaint

was granted. (Docket Entry No. 14).

On December 21, 2007, Plaintiffs filed a Second Motion to Amend Complaint (Docket Entry No. 35) in order to add certain factual allegations to the Complaint which Plaintiffs learned during the course of discovery. After a Case Management Conference on March 6, 2008, an Order by the Magistrate Judge was entered on March 7, 2008, granting leave to file the Second Amended Complaint. (Docket Entry No. 70). In that same Order, the Magistrate Judge granted Plaintiff’s Third Motion to Amend Complaint which had been filed two days earlier. The Third Amended Complaint added a new Defendant, Genesis Learning Centers (“Genesis”), which was alleged to have discretion in admitting students the Metropolitan Government wanted to place in its school and which allegedly knew of the sexually aggressive behavior of the student who allegedly assaulted Gilbert Lopez.
The day after Plaintiffs filed their Third Motion to Amend Complaint, Plaintiffs filed a Motion for Summary Judgment (Docket Entry No. 62). The sole Defendant listed in the caption of the Motion and accompanying Memorandum is Defendant Metropolitan Government, presumably because Genesis had not been made a party at that point. Defendant Metropolitan Government then filed a Motion to Strike and/or Continue Plaintiffs’ Motion for Summary Judgment (Docket Entry No. 75). Thereafter, the parties filed a “Joint Motion Extending the Time for Defendant, Metropolitian [sic] Government of Nashville and Davidson County’s Response to Plaintiff’s Motion for Summary Judgment” (Docket Entry No. 83) which would allow Metropolitan Government until May 1, 2008 to respond to Plaintiff’s Motion for Summary Judgment.
1

Lopez v. Metropolitan Government of Nashville, Not Reported in F.Supp.2d (2008)

*2 The Court finds that Defendant Metropolitan Government’s Motions to Dismiss have become moot in light of the subsequent Amended Complaints which have been filed. The Court also finds that Plaintiffs’ Motion for Summary Judgment is moot in light of the filing of the Third Amended Complaint, and, in any event, is premature. Finally, the Court finds that Plaintiff’s Renewed Motion for Class Determination should be denied because a new party has been added and the allegations relating to class certification are directed at Defendants and not just Defendant Metropolitan Government.
“It is axiomatic that an amended complaint supersedes an original complaint and renders the original complaint void.” Flannery v. Recording Industry Ass’n, 354 F.3d 632, 638 n. 1 (7th Cir.2004). In other words, the amended complaint “completely supercedes [the] original complaint, and thus the original complaint no longer performs any function in the case.” Kolling v. American Power Conversion Corp., 347 F.3d 11, 16 (1st Cir.2003); see, Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 307 (6th Cir.2000) (stating that an amended complaint supersedes all previous complaints and the new complaint controls case from that point forward). Thus, a court may deny as moot a motion to dismiss which has been filed against a complaint which is subsequently superseded. Alattiyat v. City of Memphis, 2007 WL 838129 at *1 n. 1 (W.D.Tenn.2007). Likewise, “[a] plaintiff can not move for summary judgment upon an original Complaint when he has successfully moved to amend it.” Otto v. Saia, 2007 WL 189584 at *4 (W.D.N.Y.2007).
Here, Plaintiffs have filed a Third Amended Complaint which supersedes the original Complaint, the Amended Complaint and the Second Amended Complaint. The Third Amended Complaint, which now controls, contains a new Defendant (Genesis) and allegations not found in earlier versions of the Complaint. Thus, the Court will not consider the previously filed dispositive motions which were directed at earlier versions of the Complaint.
In reaching this conclusion, the Court notes some courts have adopted the view that “defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending.” Robbins v. Wolpoff & Abramson LLP, 422 F.Supp.2d 1011, 1012 (E.D.Wis.2006). However, with the filing of the Third Amended Complaint, a new party has been added, along with some additional allegations. Moreover, in support of its Motion to Strike Plaintiffs’ Motion for Summary Judgment, Defendant Metropolitan

Government indicates that it anticipates filing a Motion to Dismiss the Third Amended Complaint. (Docket Entry No. 76 at 2). With regard to Plaintiffs’ Motion for Summary Judgment, Plaintiffs state in their Motion that “[a]ll of the evidence supports Plaintiffs’ contentions and shows that the Plaintiffs are entitled to summary judgment with the only remaining issues for jury consideration being the damages suffered by Plaintiff Gilbert Lopez and the appropriate relief.” (Docket Entry No. 62 at 1). Obviously, it is premature for the Court to make any ruling in this regard particularly since one Defendant has just been added to the action and neither of the Defendants have filed an Answer to any of the Complaints.
*3 As noted, Defendant Metropolitan Government has filed a “Motion to Strike and/or Continue Plaintiffs’ Motion for Summary Judgment.” Striking that Motion is not appropriate because Motions to Strike are disfavored and Plaintiffs’ Motion for Summary Judgment does not appear to contain “any redundant, immaterial, impertinent, or scandalous matter” within the meaning of Rule 12(f) of the Federal Rules of Civil Procedure. Accordingly, Plaintiffs’ Motion for Summary Judgment will not be stricken. Instead, that Motion will be denied in light of the fact that a new Defendant has been added to the action with the filing of the Third Amended Complaint.
The Court will also deny Plaintiffs’ Renewed Motion for Class Determination (Docket Entry No. 31) which was filed long before the Third Amended Complaint. In their Renewed Motion, the class certification is directed singularly at Defendant Metropolitan Government, whereas, in their Third Amended Complaint, Plaintiffs reference Defendants in their class action allegations. Newly-added Defendant Genesis has not been afforded an opportunity to address Plaintiffs’ contention that this suit should be maintained as a class action.
Accordingly the Court hereby enters the following rulings:
(1) Defendant Metropolitan Government’s Motion to Dismiss Amended Complaint (Docket Entry No. 16) is hereby DENIED;
(2) Plaintiffs’ Renewed Motion for Class Determination (Docket Entry No. 31) is hereby DENIED;
(3) Plaintiffs’ Motion for Summary Judgment (Docket Entry No. 62) is hereby DENIED;
(4) Defendant Metropolitan Governments’ Motion to
2

Lopez v. Metropolitan Government of Nashville, Not Reported in F.Supp.2d (2008)

Strike and/or Continue Plaintiffs’ Motion for Summary Judgment (Docket Entry No. 75) is hereby DENIED; and
(5) The “Joint Motion Extending the Time for Defendant, Metropolitian [sic] Government of Nashville and Davidson County’s Response to Plaintiff’s Motion for Summary Judgment” (Docket Entry No. 83) is hereby DENIED as MOOT.
Each party shall be permitted to file one additional dispositive motion which shall include a request to

dismiss and/or a request for summary judgment as appropriate. The deadline for filing of dispositive motions shall be set by Magistrate Judge Griffin at the previously scheduled April 4, 2008 further case management conference.
It is so ORDERED.
	  

3

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GILBERTO LOPEZ, by and through )

the CUMBERLAND TRUST &

)

INVESTMENT COMPANY as next

)

friend and trustee of

)

The Gilberto Kelly Lopez

)

Irrevocable Trust and

)

)

UNITED STATES OF AMERICA

)

Intervenor

)

)

v.

)

)

THE METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON COUNTY )

and GENESIS LEARNING CENTERS )

No. 3:07-0799 Judge Echols

O R D E R

By Consent Decree entered February 9, 2010, the Title IX claim raised by the United States against the Metropolitan Government of Nashville and Davidson County (“Metro”) (Docket Entry No. 516) has been resolved and settled. By Order entered February 9, 2010, the minor settlement resolving the matters in controversy between Plaintiff and Metro was approved(Docket Entry No. 517). The only remaining parties are Plaintiff Cumberland Trust and Investment Company as next friend and Trustee of Gilberto Kelley Lopez and Defendant Genesis Learning Centers.
Accordingly, the following motions in limine filed by Metro 1 are hereby DENIED as moot: Docket Entry Nos. 314, 316, 318, 324,

1Metro also filed two motions in limine (Docket Entry No. 308 and 341) which were joined in by remaining Defendant Genesis Learning Centers (Docket Entry Nos. 487, 498). Both of these motions have been reserved by the Court and remain until trial (Docket Entry No. 509).

Case 3:07-cv-00799 Document 526 Filed 02/23/10 Page 1 of 2 PageID #: 10396

330, 332, 334, 345, and 347. The Motion in Limine (Docket Entry No. 326) filed by the United States is likewise DENIED as moot.
It is so ORDERED. ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
Case 3:07-cv-00799 Document 526 Filed 02/23/10 Page 2 of 2 PageID #: 10397

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

JUDGMENT IN A CIVIL CASE

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY, as next friend )

and trustee of THE GILBERTO KELLY )

LOPEZ IRREVOCABLE TRUST,

)

)

v.

)

)

GENESIS LEARNING CENTERS

)

CASE NO: 3:07-0799 JUDGE ROBERT L. ECHOLS

/ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
IT IS ORDERED AND ADJUDGED that the jury found as follows:
- Plaintiff Cumberland Trust and Investment Company did not prove by a preponderance of the evidence that Defendant Genesis Learning Centers violated Gilberto Lopez’s rights under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681.
- Defendant Genesis Learning Centers did prove by a preponderance of the evidence that Kolby Harris’ intentional act was the sole and proximate cause of the May 7, 2007, incident on the bus and that this incident was unforeseeable by Genesis Learning Centers.

IN ACCORDANCE WITH THE VERDICT OF THE JURY, JUDGMENT IS HEREBY ENTERED IN FAVOR OF DEFENDANT GENESIS LEARNING CENTERS

DATE: March 18, 2010

KEITH THROCKMORTON, CLERK
BY: Vicki R. Kinkade Chief Deputy Clerk

Case 3:07-cv-00799 Document 554 Filed 03/17/10 Page 1 of 1 PageID #: 10700

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY,

)

as next friend and trustee of THE GILBERTO )

KELLY LOPEZ IRREVOCABLE TRUST, )

)

Plaintiff,

)

)

)

v.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

Case No. 3:07-0799 Judge Echols

MEMORANDUM

On March 12, 2010, after a two week trial, a jury returned a verdict in favor of Defendant

Genesis Learning Centers (“Genesis”) on Plaintiff Gilberto Lopez’1 claims for violation of Title IX,

20 U.S.C. § 1681(a), and negligence. Pending before the Court are post-trial motions, including,

in order of filing, Genesis’ Motion for Costs (Dokcet Entry No. 556) and Motion for Attorneys’ Fees

(Docket Entry No. 559), a nd Plaintiff’s Motion for New Trial (Docket Entry No. 573). 2 Those

Motions have been fully briefed by the parties and are ripe for consideration.

1The actual Plaintiff is the Cumberland Trust and Investment Company as next friend and trustee of the Gilberto Kelly Lopez Irrevocable Trust. For simplicity, the Court refers to Plaintiff as “Gilberto” or Plaintiff.
2With the Motion for New Trial, Plaintiff fildea Motion for Hearing (Docket Entry No. 574), to which Genesis objects (Docket Entry No. 584). That Motion will be denied because the parties explain their respective positions in the written f ilings, the Court is f ully aware of the f acts underlying this litigation, and the Court finds that oral argum ents would not be of be nefit in resolving the Motion for New Trial.
1

A. Genesis’ Motion for Costs Pursuant to Rule 54(d) of the Fede ral Rules of Civil Procedure and 28 U.S.C. § 1920,
Genesis moves the Court for an award of costs in the amount of $30,144.35. Defendants’ Motion does not comply with Local Rule 54.01.
Rule 54.01(a) requires counsel to file a cost ibll with the Clerk for the assessment of taxable costs pursuant to 28 U.S.C. § 1920. The rule also contains specific pr ocedures to be utilized in seeking costs, and leaves the assessment of costs in the first instance to the Clerk. Once the Clerk makes an initial assessm ent, the parties can take exception to the Cler k’s action. Only after the Clerk makes a final decision as to costs may the request for costs be presented to the Court.
Because of Genesis’ failure to comply with the Local Rule, its request for costs will be denied. However, the initial f iling was m ade within thirty (30) days of the Court’s entry of Judgment as required by Local Rule 54.01(a), and Genesis will be afforded additional time to make a revised cost filing which complies with the Local Rules. B. Genesis’ Motion for Attorneys’ Fees
Genesis seeks attorneys’ fees in the amount of $358,997.00 because it was the prevailing party on Plaintiff’s Title IX claim. This figure is based upon 846.80 hours in attorney and paralegal time which Genesis claims was necessary to defend this action.
Genesis argues that Plaintiff’s pursuit of a Title IX claim against it was unreasonable and groundless. Genesis notes that the Title IX claimwas the only federal claimasserted against it and posits that the m otivating factor for Plaintiff’s continued pursuit of the Title IX claim was the potential for an award of attorneys’ fees if Plaintiff prevailed on that claim. Genesis also observes
2

that without the Title IX claim, this would have been merely a negligence case over which the Court
would have lacked jurisdiction.
Section 1988 of Title 42 provides that “[i]n any action or proceeding to enforce . . . title IX
of Public Law 92-318 . . . , the coutr, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as a partof the costs.” 42 U.S.C. § 1988(b). With regard
to the award of attorneys’ fees under Section 1988, the Sixth Circuit has stated:
Although § 1988 ordinarily entitles a prev ailing . . . plaint iff to recover reasonable attorney fees, the Suprem e Court has held that a prevailing defendant should recover only upon a finding by the district court that “‘the plaintiff’s action was frivolous, unreasonable, or wit hout foundation, eve n though not brought in subjective bad faith.’” Hughes v. Rowe , 449 U.S. 5, 14 (1980)(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)); Wayne v. Village of Sebring, 36 F.3d 517, 530 (6 th Cir.1994), cert. denied, 514 U.S. 1127 (1995); Tarter v. Raybuck, 742 F.2d 977, 985 (6th Cir.1984). In other language the Court has stated, “a plaintiff should not be a ssessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg, 434 U.S. at 422. In applying this standard, courtsmust balance the policy of encouraging the pursuit of valid civil rights claims against the public interest in discouraging baseless or vindictive lawsuits. Accordingly, theSupreme Court has cautioned district courts considering prevailing defendants' applications for attorney fees t o “ ‘resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.’” Christiansburg, 434 U.S. at 421-22, quoted in Wayne, 36 F.3d at 530.
White v. City of Ypsilanti, 1997 WL 70523 at *2 (6th Cir. 1997). In light of this, “[a]n award of
attorney’s fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be
limited to truly egregious cases of misconduct.” Jones v. Continental Corp., 789 F.2d 1225, 1232
(6th Cir.1986).
Genesis claims it is entitled to an award of attorneys’ fees because Plaintiff failed to prove
that Gilberto was subjected to sexual harassment which was so severe, pervasive, and objectively
3

offensive that it deprived him of access to educational opportunities, or that Genesis had actual knowledge of the sexual harassment but was deliberately indifferent to the same. Genesis notes that these are required elem ents to prove a Title IX claim in accordance with the Suprem e Court’s decision in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
Genesis’ arguments are essentially the arguments presented to the Court in the context ofthe parties’ cross-motions for summary judgment and, in fact, Genesis generally relies upon the same cases to support i ts position. The Court denied Genesis’ Motion for Sum mary Judgment on Plaintiff’s Title IX claim.
With respect to the severe, pervasive and objectively offensive nature of the harassment, the Court pointed out in its summary judgment ruling that“[m]ost courts which have addressed the issue have concluded that even a single incident of rape is sufficient.” Lopez v. Metro. Govt. of Nashville, 646 F.Supp.2d 891, 913 (M.D. Tenn. 2009)(collecting cases). The Court also observed that the Sixth Circuit in Soper v. Hoben, 195 F.2d 845 (6th Cir. 1999) held that “‘[w]ith respect to the first prong of the Da vis test’ evidence that plaintiff was raped ‘obviously qualifies as being severe, pervasive and objectively ofensive sexual harassment that could deprive [plaintiff] of access to the educational opportunities provided by her school.’” Id . at 913-14. At trial, the jury was presented with a videotape of the incident and from that tape the jury could easily have concluded that Kolby f orced Gilberto to perf orm fellatio on him. Therefore, there was evidence which supported Plaintiff’s contention that the sexual harassment was severe, pervasive and offensive.
As for the deprivation of educational opportunities element, that, too, was addressed in the summary judgment rulings. The Court observed, “withdrawal from school is a concrete and negative effect on the victim’s education.” Id. at 914. At trial, the evidence indicated that, after the
4

incident, Gilberto transferred to a residential treatment facility. While Genesis sought to show that the transfer was a result ofGilberto’s myriad of problems and not related to the bus incident, the jury could have concluded otherwise.
Finally, Genesis asserts that Plaintiff’s Title IX claim was f rivolous, unreasonable, or groundless because Plaintiff failed to show thatGenesis had actual knowledge of sexual harassment and was deliberately indifferent despite that knowledge. In doing so, Genesis focuses exclusively upon what it did or did not know about Kolby harassingGilberto. However, this Court rejected the very same myopic view of knowledge in the sum mary judgment ruling. In doing so, the Court observed that while some courts after Davis had indicated that “‘a school m ust be aware that a particular individual was subjected to a sexually hostile environment or that a particular individual was the perpetrator of sexual harassment . . . [t]he more accepted view, and the one this Court adopts is that, to be liable, ‘the institution must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff’s legal claim is based.’” Id. at 915 quoting, Staehling v. Metro. Govt. of Nashville, 2008 WL 4297939 at *10 (M .D. Tenn. 2008). The Court went on to hold that Title IX liability “‘could be based on the recipient’s knowledge of, and deliberate indifference to, a particular harasser’s conduct.” Id. (italics in original). At trial, Plaintiff presented numerous instances (by his count nine) wherein Genesis’ administrators and/or teachers knew about sexual misconduct by Kolby and from that evidence a jury could conclude that Kolby was a known harasser who should have been subjected to more restraints by Genesis.
5

Plaintiff cannot be faulted for pursuing a Title IX claimagainst Genesis. Plaintiff was given the green light to do so by the Court and pursuit ofthat claim was not egregious. Accordingly, the Court will exercise its discretion and deny Genesis’ request for an award of attorneys’ fees. C. Gilberto’s Motion for a New Trial
Plaintiff seeks a new trial for three basic r easons. First, Plaintiff argues that Gene sis’ reliance on Kolby’s intentional act as a bar to Plaintiff’s negligence claim was improper since the same was an affirmative defense which was not pled. Second, Plaintiff argues that the Court erred in instructing the jury with regard to Kolby’s intentional act. Finally, Plaintiff argues that the jury verdict in favor of Genesis is against the weight of the evidence.
1. Intentional Act As Affirmative Defense, Waiver Rule 8 of the Federal Rules of Civil Procedure lists nineteen affiramtive defenses which must be pled, Fed. R. Civ. P. 8(c), and “intentional act” is not one of them. The list, however, is not all encompassing for the rule requires a defendant to plead “any other matter constituting an avoidance or affirmative defense.” Id. Generally, affirmative defenses are distinguished from general denials because they require the pleading of facts which are extrinsic to plaintiff’s cause of action. See, In re Sterten, 546 F.3d 278, 284 (3d Cir. 2008). Requiring that fafirmative defenses be pled “gives the opposing party notice and an opportunity to respond.” Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Since the “intentional act” defense was interposed in an effort to defeat Plaintiff’s negligence claim, the Court is to look to Tennessee law to detremine whether an intentional act is an affirmative defense to such a claim. See, Roskam Baking Co. v. LanhamMach. Co, 288 F.3d 895, 901 (6th Cir. 2002)(in determining whether a defense to a state claim is an affirmative defense, state law defines
6

the nature of the defense while Rule 8(c) provides the manner and time in which the defense must be raised). The Tennessee Supreme Court has specifically stated that “a negligent defendant may, of course, raise a third party’s intentional act to refute elements of the plaintiffs’ negligence claim such as duty and causation[.]” Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn. 1997)(emphasis added). Because the question of intentional acts goes to the issue of whether Plaintiff can prove the elements of a negligence claim , it is not an affi rmative defense which must be specifically pled. Were it otherwise, a defendant in a negligence action would be required to plead, as affirm ative defenses, that (1) it owed no duty (or breached no duty) of care to the plaintiff; (2) that its conduct did not fall below the a pplicable standard of care; (3) that plaintiff suffered no harm ; (4) that defendant’s actions were not thecausation of any harm; and/or (5) that defendant’s actions were not the legal or proximate cause of any harm, whenever the defendant believes plaintiff cannot establish any one or more of these elements of a negligence case. That is clearly not the law as a defendant in its answer may merely deny that it was negligent.
Yet even if the intentional act of Kolby constituted an affirmative defense which Genesis should have pled in its answer, the “failure to raise an affirmative defense by a responsive pleading does not always result in waiver.” Moore, Owen, Thomas & Co. v. Coffey, 922 F.2d 1439, 1445 (6th Cir. 1993). Because the purpose of Rule 8(c) is to give notice, “[a] defendant does not waive an affirmative defense if the defense is raised at a time when plaintiff’s ability to respond is not prejudiced.” R.H. Cochran & Assoc., Inc. v. Sheet Metal Workers Int’l Assoc., 335 Fed. Appx. 516, 519 (6th Cir. 2009). In other words, there is no waiv er “when the plaintiff receives notice of the affirmative defense.” Seals v. General Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008).
7

In its Motion for Summary Judgment filed well over a year before trial, Genesis argued that the harm to Gilberto was not foreseeable specifically because Kolby engaged in an intentional act. (Docket Entry No. 170 at 17-18). Plaintiff understood this to be an issue as evidenced by the fact that in his own motion for summary judgment (also filed more than a year before trial), Plaintiff argued that under Turner, Genesis had a duty to exercise reasonable care to protect Gilberto and that “this duty included Defendants’ obligation to protectGilberto from the foreseeable intentional acts of a third party adult student with a recorded and known history of a ttempted sexual attacks on young boys on school buses[.]” (Docket Entry No. 184 at 29-30).
If this does not demonstrate that Plaintiff had notice the intentional acts of Kolby was an issue in regard to foreseeability, Genesis’ proposed jury instructions and proposed verdict form ,3 which were filed alm ost a year before the initial trial date, certainly placed Plaintiff on notice. Genesis tendered an instruction which read:
In this case, the defendants claim that Kolby Harris’s intentional act was the sole cause in fact and/or the proximate cause of the May 7, 2007 incident. Even though he has not offered evidence, it is necessary that you determ ine whether Kolby Harris’s intentional act was the sole cause infact and/or the sole proximate cause of the May 7, 2007 incident. (Docket Entry No. 383). Further, the first question on Genesis’ Proposed Verdict Form asked the jury whether “the actions of Kolby Harris were th e sole cause in fact, and/or the sole proxim ate cause of any damages sustained” by Gilberto. (Docket Entry No. 386). On Janua ry 27, 2010, in anticipation of the rescheduled trial set tocommence in March 2010, Genesis again filed proposed
3At the tim e of these f ilings, the Metropolitan Governm ent of Nashville and Davidson County (“Metro”) was still a Defendant in this action and the Defendants filed joint requests for jury instructions.
8

instructions and a proposed jury verdict formwhich used identical language specifically addressing
Kolby’s intentional act. (Docket Entry Nos. 495 & 496).
Given this record, Plaintiff was clearly placed on notice that Genesis intended to rely on
Kolby’s intentional act in an effort to show that it was not liable for any harm or injury to Gilberto.
Plaintiff’s present assertions (1) that Genesis somehow injected the inte ntional act issue as “an
untimely, backdoor maneuver to reintroduce the comparative fault of Harris”; (2) that such actions
somehow precluded Plaintiff’s counsel from presenting appropriate jury instructions on that issue
and its relationship to com parative fault; and/or (3) that Genesis’ actions prevented Plaintiff’s
counsel from developing argument or proof that Kolby’s alleged incompetence made him unable
to act intentionally are rejected as without merit.
2. Instructions Regarding Intentional Act
With regard to the intentional act of Kolby,Plaintiff argues in his Motion for New Trial that
the issue should have been presented “in the negligence charge as intervening or superseding cause,
as Plaintiff argued at trial[.]” (Doc ket Entry No. 572 at 1). In his accom panying brief, Plaintiff
writes:
A complete and accurate charge would have em ployed language of W hite v. Lawrence, a medical malpractice claim concerning a physician’s responsibility for the suicide of the plaintiff’s decedent:
. . . an independent intervening cause breaks the chain of proximate causation and thereby precludes recovery. The law is equally clear, however, that an intervening act, which is a normal response created by negligence, is not a superseding,intervening cause so as to relieve the original wrong doer of liability, provided the intervening act could have reasonably been foreseen and the conduct of [of t he original wrongdoer] was a substantia l factor in bringing about the harm. Accordingly, “an intervening act will not exculpate the original wrongdoer unless it is shown that the intervening act could not have been reasonably anticipated. W hether such an event or act constitutes an intervening cause is of r the jury to determine unless the
9

uncontroverted facts and inferences to be drawn fromthe facts make it so clear that all reasonable persons m ust agree on t he proper outcome.” 975 S.W.2d 525, 529-530 (Tenn. 1998)(internal citations omitted)(emphasis added). (Docket Entry No. 573 at 14). Apart from the foregoing excerpt, Plaintiff presents no authority which suggests that this Court’s instructions were wrong and no cogent argum ents which would indicate that this Court erred in the jury charge which addressed the intentional act of Kolby. With regard to White, Plaintiff highlights its language to the effect that a wrongdoer is not relieved from liability unless it is shown that theintentional act could not have been “anticipated.” However, whether an act is “anticipated” suggests taht the act must be “foreseeable,” and vice versa, and Tennessee cases frequently interchange “foreseeable” or “anticipated” (or variations of those words) in discussing negligence. See , McClenahan v. Cooley , 806 S.W .2d 767, 775 (Tenn. 1991)(“harm giving rise to the action could have reasonably been foreseen or anticipated”); Rathnow v. Knox County, 209 S.W.2d 629, 633 (Tenn. Ct. App. 2006)(“If an injury giving rise to a cause of action for negligence could not have reasonably been foreseen or anti cipated, then there is no proximate cause”). In this case, the jury was specifically instructedthat one ofthe issues it was to determine was whether Genesis proved “by a preponderance of thevidence that Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident on the bus and was not foreseeable by Genesis Learning Centers.” (Jury Charge at 12). Further, the jury was given a specific instruction relating to the intentional act of Kolby which read:
INTENTIONAL ACT BY THIRD PARTY In this case, Genesis Learning Centersclaims that Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident on the bus and was not foreseeable by Genesis Learning Centers.
10

Even though he has not offered evidence, it is necessary that you determine (1) whether Kolby Harris’s intentional act was the sole and proximate cause of the May 7, 2007 incident and (2) whether or not it was foreseeable.
The Defendant, Genesis Learning Centers, asserts and relies upon the intentional act by a third party, Kolby Harri s, and it has the burden to prove by a preponderance of the evidence that the thir d party’s act or a cts was the sole and proximate cause of the May 7, 2007 incident onthe bus and that said act or acts were not foreseeable. If Genesis Learning Centers fails to m eet this burden of proof, it cannot be exonerated by the intentional act of Kolby Harris. (Id. at 23). The jury was also given an instruction on foreseeabilit y which, among other things, informed them that “[a] risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom it owed a duty is probable.” ( Id. at 20). In the Verdict Form, the jury was instructed that if it found Genesis proved by a preponderance of t he evidence that Harris’ intentional act was the sole and proximate cause of the May 7, 2007 incident and it further found that Genesis proved the same to be unforeseeable, the jury was to return a verdict in favor of Genesis on the negligence claim , without apportioning any fault. Juries are presumed to understand and follow a court’s directions and instructions. United States v. Carter, 236 F.3d 777, 787 (6th Cir. 2001). In this case, the jury was clearly instructed that to absolve Genesis of liability due to Kolby’s in tentional act, the jury would have to find that Kolby’s act was the sole and proximate cause of the May 7, 2007 incident and that Genesis could not foresee (or anticipate) Kolby’s act. The Court does not read White as requiring anything more. Moreover, both White and Turner indicate that the conduct of a negligent defendant should not be compared with the intentional conduct of a third party, W hite, 975 S.W.2d at 531; Turner , 957 S.W.2d at 823, and thus it was proper for the Court not to have the jury com pare fault if it determined the proximate cause of Plaintiff’s injury was the unforeseeable intentional act of Harris.
11

3. Weight of the Evidence Finally, Plaintiff seeks a new trial on the grounds that the jury’s failure to find liability on Title IX and its determination that the intentional act of Kolby barred Plaintiff’s negligence claim was against the weight of the evidence. The request for a new trial underFed. R. Civ. P. 59 is governed by federal law, In re Brow, n 342 F.3d 620, 626 (6 th Cir. 2003), and is alm ost entirely within the di scretion of the trial court, Allied Chemical Corp. v. Daiflon, 449 U.S. 33, 36 (1980). A new trial may be granted to rectify a “‘seriously erroneous result.’” Holmes v. City ofMassillon, 78 F.3d 1041, 1046 (6th Cir. 1996). “A ‘seriously erroneous result’ [is] evidenced by: ( 1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3)the trial being unfair to the moving party in some fashion, i.e. the proceedings being influenced byprejudice or bias.” Kusens v. Pascal Co., Inc., 448 F.3d 349, 367 n. 13 (6th Cir. 2006). In ruling on a motion for new trial, the Court “must compare the opposing proofs, weigh the evidence, and set aside the verdict only if it determ ines that the verdict is against the clear weight of theevidence.” United States v. L.E. Cooke Co,. 991 F.2d 336, 343 (6th Cir. 1993). The m otion should be denied if the jury reasonably could have reache d its verdict. Id. The verdict is not unreasonable simply because different inferences and conclusions could have been drawn from the evidence or because a differ ent result m ight have been m ore reasonable. Id. In this case, the Court cannot saythat the verdict is against theweight of the evidence or that the jury’s verdict in favor of Genesis was a “seriously erroneous result.” Twenty-three witnesses testified and numerous documents were introduced over the course of the nine-day trial and from
12

such evidence the jury could readily determine, as it did, that Genesis was not liable under Title IX or for negligence.
Plaintiff begins by arguing that Gilberto was subjected to a rape and suggests that the jury could not have reached any other conclusion based upon the weight of the testim ony presented. While the Court believes from the weight of the evidence that Kolby did in fact force Gilberto to perform fellatio, a jury could have determined otherwise since it viewed thetape (several times) and, as the Court pointed out in the summary judgment ruling, “the videotape is not conclusive.” Lopez, 646 F. Supp.2d at 914.
Even accepting that Gilberto was raped, the jury could have returned a verdict in favor of Genesis because there was ample evidence that it was not deliberately indifferent, or, for purposes of the negligence claim, that Kolby’s actions were not reasonably foreseeable to Genesis. In this regard, there was abundant evidence fromwhich the jury could conclude that real responsibility for the safety of Gilberto when he left Genesis rested with Metro, and not Genesis.
The relationship between Genesis and Metro was governed by a contract and that contract specifically excluded transportation. The bus on which the incident occurred was a Metro school bus, driven by a Metro school bus driver. Metro decided the route the buses were to take and decided which students were to be assigned to a bu.s Further, Metro had a manual which the drivers were supposed to follow and that manual indicated that there was only to be one child per seat on special needs buses. From such evidence, the jury could have easily placed responsibility for the entire incident on Metro instead of on Genesis.
Given the fact that transportation was Metro’s responsibility, the jury could also conclude that Genesis did all that it could in relation to school bus safety since the evidence showed that, for
13

years, Genesis requested that monitors be placed on Metro buses. Genesis did so because the students were in a highly structured environment while at Genesis,but rode on buses which Genesis viewed to have less than adequate supervision. Despite those reque sts, Metro chose not to place monitors on school buses until after this incident occurred.
The jury could also have easily determined that the incident was the result ofa flukish series of events for which Genesis was not responsible. On May 7, 2007, the regul ar bus driver, Chris Gaines (“Gaines”), was absent and he was replacedby Gloria Smith (“Smith”). Gaines testified that he enforced the one child per seat rule and would not have allowed Gilberto to wander back to Kolby’s seat. Smith, the substitute bus driver, agreed that the policy called for only one student per seat and that Gilberto should not have been allowedto move seats and sit next to Kolby. At the time the school bus left Genesis, Gilberto was sitting alone in his designated seat at the front of the bus three rows ahead and on the opposite side of the bus from Kolby. It was Metro bus driver Smith who allowed Gilberto to move, and Smith who did not intervene once she saw Gilberto sitting next to Kolby.
The jury could also determ ine that Kolby f orcing Gilberto to perf orm fellatio was not reasonably foreseeable given Genesis’ knowledge of Kolby’s past. Kolby had been at Genesis for nearly a year, without being involved in a sim ilar incident. What information Genesis did have about Kolby was that, while he had been involved in prior instances of sexual activity, that sexual activity involved consensual sexual activity with age-appropriate fem ales, and did not involve forcing himself on younger, male students, or at least a jury could have so found.
The foregoing are but some of the reasons whythe jury may have found in favor of Genesis and any one of those reasons would have been suffi cient. Having presided at the trial, the Court
14

cannot say that the jury reached a verdict which was contrary to the evidence and certainly cannot conclude that the jury’s decision was against the “clear weight of the evidence,” or that it reached a “seriously erroneous result” so as to warrant a new trial. D. Conclusion
On the basis of the foregoing, Genesis’ Motion for Costs (Docket Entry No. 556) will be denied without prejudice. Genesi s’ Motion for Attorneys’ Fees (Docket Entry No. 559) will be denied. Plaintiff’s Motion for New Trial (Docket Entry No. 573) and the accompanying Motion for Hearing (Docket Entry No. 574) will also be denied.
An appropriate Order will be entered. ____________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE
15

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY,

)

as next friend and trustee of THE GILBERTO )

KELLY LOPEZ IRREVOCABLE TRUST, )

)

Plaintiff,

)

)

)

v.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

Case No. 3:07-0799 Judge Echols

ORDER

For the reasons set forth in the Memorandum issued contemporaneously herewith, the Court

hereby enters the following rulings:

(1) Genesis’ Motion for Costs (Docket Entry No. 556) is hereby DENIED, but said denial

is WITHOUT PREJUDICE to Genesis filing a bill of costs which complies with Local Rule 54.01

within twenty days of entry of this Order;

(2) Genesis’ Motion for Attorneys’ Fees (Docket Entry No. 559) is hereby DENIED;

(3) Plaintiff’s Motion for New Trial (Docket Entry No. 573) is hereby DENIED; and

(4) Plaintiff’s Motion for Oral Argument (Docket Entry No. 574) is hereby DENIED.

It is so ORDERED.

____________________________________ ROBERT L. ECHOLS UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

GILBERTO LOPEZ, by and through the )

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY, as next friend )

and trustee of THE GILBERTO KELLY )

LOPEZ IRREVOCABLE TRUST,

)

)

Plaintiff,

)

)

vs.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

3:07-CV-799 JURY DEMAND Judge Echols Magistrate Judge Griffin

NOTICE OF APPEAL

Notice is hereby given that Plaintiff Gilberto Lopez, by and through the Cumberland

Trust and Investment Company, as next friend and trustee of The Gilberto Kelly Lopez

Irrevocable Trust, appeals to the United States Court of Appeals for the Sixth Circuit from

the following:

1. Order granting Defendant’s Motion for Summary Judgment, in part, with

respect to Plaintiff’s claim against Genesis Learning Centers under 42 U.S.C. §1983, which

was entered by the Court on July 7, 2009 (Order, Doc. 460); and,

2. Order denying Plaintiff’s Motion for New Trial, which was entered by the

Court on June 3, 2010 (Order, Doc. 588).

Respectfully submitted,

BLACKBURN, McCUNE, HAPPELL & ZENNER, PLLC

s/ John Ray Clemmons_____ W. Gary Blackburn (#3484) Malcolm L. McCune (#2660) John Ray Clemmons (#25907) 101 Lea Avenue

1 Case 3:07-cv-00799 Document 591 Filed 06/16/10 Page 1 of 2 PageID #: 13014

Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385 Email: gblackburn@bmhzlaw.com
mmccune@bmhzlaw.com jclemmons@bmhzlaw.com Counsel for Plaintiff
CERTIFICATE OF SERVICE I certify that a true and exact copy of the foregoing “NOTICE OF APPEAL” has been served via the CM/ECF electronic filing system, on the following: Benjamin M. Rose, Esq. James K. Simms, IV, Esq. Cornelius & Collins, LLP 511 Union Street Suite 1500 Nashville, TN 37219-0695 Counsel for Defendant on this the 16th day of June, 2010.
s/ John Ray Clemmons____ John Ray Clemmons
2 Case 3:07-cv-00799 Document 591 Filed 06/16/10 Page 2 of 2 PageID #: 13015

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

GILBERTO LOPEZ, by and through the )

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY, as next friend )

and trustee of THE GILBERTO KELLY )

LOPEZ IRREVOCABLE TRUST,

)

)

Plaintiff,

)

)

vs.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

3:07-CV-799 JURY DEMAND Judge Echols Magistrate Judge Griffin

NOTICE OF CROSS APPEAL

Notice is hereby given that Defendant Genesis Learning Centers, by and through counsel,

cross appeals to the United States Court of Appeals for the Sixth Circuit from the District Court's

Order denying Genesis Learning Centers' Motion for Attorney's Fees, which was entered by the

Court on June 3, 2010 (Docket Entry No. 588).

Respectf

ully submitted,

Jam
Suite 511 P. Nashville, Phone: Fax:
Genesis

s/ James K. Simms, IV

Jay N. Chamness, Esq. (# 16027)

es K. Simms, IV, Esq. (# 21688)

Ben M. Rose, Esq.

(#021254)

1500, Nashville City Center

Union Street

O. Box 190695

Tennessee 37219

(615) 244-1440

(615) 254-9477

Attorneys for Defendant, Learning Centers

Case 3:07-cv-00799 Document 596 Filed 06/30/10 Page 1 of 2 PageID #: 13028

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electr onically on this 30th day of June, 2010. Notice of this filing will b e sent by operation of the Court’s electronic filing system to all parties listed belo w. Parties m ay access this filing through the C ourt’s electronic filing system. W. Gary Blackburn, Esq. Malcolm L. McCune, Esq. John Ray Clemmons, Esq. Blackburn and McCune, PLLC 101 Lea Avenue Nashville, TN 37210
s/ James K. Simms, IV James K. Simms, IV
2 Case 3:07-cv-00799 Document 596 Filed 06/30/10 Page 2 of 2 PageID #: 13029

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

GILBERTO LOPEZ, by and through the

)

CUMBERLAND TRUST AND

)

INVESTMENT COMPANY, as next friend )

and trustee of THE GILBERTO KELLY

)

LOPEZ IRREVOCABLE TRUST,

)

)

Plaintiff,

)

)

v.

)

)

GENESIS LEARNING CENTERS,

)

)

Defendant.

)

3:07-CV-799 JURY DEMAND Judge Echols Magistrate Judge Griffin

JOINT PETITION FOR AN ORDER APPROVING MINOR SETTLEMENT

Come the Petitioners, Plaintiff Cumberland Trust and Investment Company ("Plaintiff")

and Defendant Genesis Learning Centers ("Defendant"), by and through counsel, and

respectfully petition this Court for an Order approving a s ettlement between the parties. A s

support, the Petitioners would show as follows:

1. Following an extended jury trial resulting in a verdict in Defendant's favor, the

Petitioners each filed appeals to U.S. Court of Appeals for the Sixth Circuit. As part of the

appellate process, the Petitioners participated in a mediation telephone conference pursuant to

Rule 33, R ules of the Sixth Circuit. A s a result of initial discussions under this process, the

Petitioners have reached an agreement to settle this matter, subject to approval by this Court,

without continued appeal.

2. Prior to the trial of this cause, the Plaintiff reached a settlement with then-

Defendant the Metropolitan Government of Nashville and Davidson County ("Metropolitan

Government"). (Docket Entry No. 502) This settlement, which provided for the Metropolitan

Case 3:07-cv-00799 Document 601 Filed 08/30/10 Page 1 of 4 PageID #: 13034

Government to pay Plaintiff $1,475,000.00, was approved by the Honorable Robert L. Echols, United States District Judge.
3. While Defendant continues to adamantly deny any liability whatsoever to the Plaintiff and/or Gilberto Lopez for the actions/inactions described in the Plaintiff's Complaint, the Petitioners acknowledge that continued appeal of the jury's verdict in this case will require them to accrue additional attorney's fees and litigation expenses. A s a result, it is in the Petitioners' mutual interest to settle this case, if this Court is agreeable, for payment by Defendant to the Plaintiff in the amount of $25,000.00.
4. Based upon all that is known and reasonably could have been discovered, Petitioners respectfully submit that settlement of this case upon payment by the Defendant to the Plaintiff in the amount of $25,000.00 i s manifestly in the best interest of Gilberto Lopez, especially given the previous settlement with the Metropolitan Government. The parties to this settlement would also show that all liens have been satisfied through the previous settlement and Plaintiff will indemnify and hold the Defendant harmless therefrom any remaining liens, to the extent they exist, if any.
5. In accordance with the foregoing, the Plaintiff will dismiss its appeal with prejudice, Defendant will dismiss its cross appeal with prejudice, and the cost bill will be waived.
6. As further support for this Petition, the Petitioners incorporate herein by reference the previous Petition for an Order Approving Minor Settlement filed by the Plaintiff. (Docket Entry No. 502)
For the reasons stated above, therefore, the Petitioners move this Court to approve the settlement as herein described and specifically authorized payments of the following amounts:
2 Case 3:07-cv-00799 Document 601 Filed 08/30/10 Page 2 of 4 PageID #: 13035

1. To Cumberland Trust
2. To Blackburn, McCune, Happell & Zenner, PLLC

$25,000.00 $ 0

Respectfully submitted,

s/ Ben M. Rose

Jay N. Chamness (# 16027)

James K. Simms, IV (# 21688)

Ben M. Rose

(#021254)

Suite 1500, Nashville City Center

511 Union Street

P. O. Box 190695

Nashville, Tennessee 37219

Phone: (615) 244-1440

Fax: (615) 254-9477

Attorneys for Defendant, Genesis Learning Centers

s/ W. Gary Blackburn w/permission BMR W. Gary Blackburn Malcolm L. McCune John Ray Clemmons Blackburn, McCune, Happell & Zenner, PLLC 101 Lea Avenue Nashville, Tennessee 37210
Attorneys for Plaintiff

3 Case 3:07-cv-00799 Document 601 Filed 08/30/10 Page 3 of 4 PageID #: 13036

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically on this 30th day of August, 2010. N otice of this filing will be sent by operation of the Court’s Electronic Filing System to all parties listed below. Parties may access this filing through the Court’s Electronic Filing System.
s/ Ben M. Rose Ben M. Rose
4 Case 3:07-cv-00799 Document 601 Filed 08/30/10 Page 4 of 4 PageID #: 13037

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GILBERTO LOPEZ, by and through the )

Cumberland Trust & Investment Company )

as next friend and trustee of The Gilberto )

Kelly Lopez Irrevocable Trust

)

)

v.

)

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON

)

COUNTY; and GENESIS LEARNING )

CENTERS

)

No. 3-07-0799

O R D E R

The parties' joint petition for approval of th e minor settlement (Docket Entry No. 601) i s GRANTED.
The petition does not come to the Court on a blank slate since the undersigned Magistrate Judge has been intimately involved in the case addressing numerous pretrial matters since the case was filed in 2007. The parties have, although cooperative and profe ssional with each other, vigorously contested liability and other issues. By order entered February 9, 2010 (Docket Entry No. 517), the settlement between the plaintiff and defendant Metropolitan Government of Nashville and Davidson County ("Metro") for $1,475,000.00, was approved as "amnifestly in the best interest" of the minor child. At the conclusion of the nine day trial, the jury rendered a verdict in favor of defendant Genesis Learning Centers ("Genesis") on March 12, 2010. The plaintiff tim ely filed a notice of appeal from the order granting in part the m otion of defendant Gene sis for summary judgment and the order denying the plaintiff' s motion for a new trial. Defendant Genesis fi led a notice of cross appeal from the order denying attorney's fees to defendant Genesis.
After consideration of the parties' petition, and by order entered August 31, 2010 (Docket Entry No. 605), the Court advised the Court of Appeals for the Sixth Circuit that, if the case were remanded, the parties'petition would be granted.By order entered September 7, 2010 (Docket Entry No. 606), the Court of Appeals remanded the appeals to this District.

Case 3:07-cv-00799 Document 607 Filed 09/08/10 Page 1 of 2 PageID #: 13051

The plaintiff is faced with a jury verdict in favor of the defendant and the prospect of incurring additional attorney' s fees and expenses , and the defenda nt is faced with additional attorney's fees and expenses to defend and prosecute the c ross appeals. Both parties face the uncertainty of the ultimate resolution of the appeals. Under these circumstances, it is in both parties' interests to resolve the case. Although the am ount of the settlem ent is relatively m inimal, the plaintiff obtained a significant settlement from defendant Metro. Given the jury verdict and the Court's denial of the plaintiffs' motion for a new trial, coupled with the significant settlement reached with defendant Metro, it is not only a wise decision by the plaintiff to resolve this case but also in the best interests of the minor child.
Because of the Court's prior knowledge of this case, the Court finds that it is not necessary to have a hearing on this m atter. B ecause all proceeds of this settlem ent will be paid to the Cumberland Trust and Investment Company as trustee of the irrevocable trust for the minor child, it is not necessary to consider the need for appoinmt ent of a guardian. The parties have represented that all liens have been satisfied. Because none of the proceeds of this settlement will be paid to plaintiff's counsel, there is no need to consider attorney's fees.
In sum, the Court finds that the settlement is fair and reasonable and in the best interests of the minor child and is APPROVED.
The plaintiff and defendant Genesis shall file an agreed order or stipulation of dismissal of all claims brought by the plaintiff against defendant Genesis.
It is so ORDERED.
JULIET GRIFFIN United States Magistrate Judge
2
Case 3:07-cv-00799 Document 607 Filed 09/08/10 Page 2 of 2 PageID #: 13052

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GILBERTO LOPEZ, by and through the )

CUMBERLAND TRUST &

)

INVESTMENT COMPANY as next friend )

and trustee of The Gilberto Kelly Lopez )

Irrevocable Trust,

)

)

Plaintiff,

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DAVIDSON

)

COUNTY; and GENESIS LEARNING )

CENTERS,

)

)

Defendants.

)

NO. 3:07-CV-799 Judge Echols Magistrate Judge Griffin

CONSENT DECREE This case originated on July 30, 2007, when Plaintiff Ki mberly Lopez filed a com plaint against the Metropolitan Governm ent of Nashville and Davidson County (hereafter “Metropolitan Government”). The com plaint alleged that on May 7, 2007, Plaintiff’s son, Gilberto Lopez, was sexually a ssaulted while riding a special education school bus operated by the Metropolitan Nashville Public Schools (herea fter “MNPS”). On April 30, 2008, Plaintiff amended her com plaint to inter alia join Genesis Learning Center s (hereafter “Genesis”) as a defendant, and add a sex discrimination claim against the Metropolitan Government and Genesis pursuant to Title IX of the E ducation Amendments of 1972 (herea fter “Title IX”), 20 U.S.C. § 1681 (2000). On September 10, 2008, the United States m oved to intervene in this case and filed a
1
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proposed Title IX complaint-in-intervention against the Metropolitan Government. Recognizing the United States ’ substantial interest in ensuring that recipients of federal funds do not discriminate on the basis of sex in violation of Title IX, the Court gr anted the United State s’ motion to intervene and directed the Clerk to file the United States’ complaint-in-intervention on November 4, 2008.
On January 15, 2009, all parties cross-m oved for summary judgment. On July 7, 2009, the Court denied the motions of all parties for summary disposition of the Title IX claim s filed by Plaintiff and the United States.
The United States and the Metropo litan Government Board of Public Education have conferred in good faith and have ne gotiated the terms of this Consent Decree to resolve the T itle IX claim raised by the United States.1 This Consent Decree is entered in full and final settlement of the civil claim s alleged in the United States ’ complaint-in-intervention. After reviewing the terms of this Consent Decree, th e Court finds them to be fair, just, reasonable, and consistent with the re quirements of Title IX. Accordingly, the Court ORDERS, ADJUDGES, and DECREES the following:
I. JURISDICTION This Court has jurisdiction over the subject matter herein pursuant to 28 U.S.C. §§ 1331 and 1345. The United States’ compla int-in-intervention states claims upon which relief m ay be granted against the Metropolitan Governm ent for an injunctive rem edy. The Metropolitan Government agrees not to contes t the jurisdiction of the Court to enter and enforce this Consent
1 The United States and the Metropolitan Government of Nashville and Davidson County are the only two signatories who are authorized to enforce this Consent Decree. Nothing in this Consent Decree shall be construed to in any way limit the claims or relief sought by Plaintiffs Gilberto Lopez and Cumberland Trust & Investment Company.
2
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Decree. II. DEFINITIONS
A. "Bus Monitor" refers to an adult, other than the bus driver, hired by MNPS to ride a MNPS-operated school bus for the purpose of monitoring and supervising the student-passengers while they are on the bus.
B. “Bus Transportation Order” refers to a transportation order generated by the IEP Process that outlines the special transportation needs of a student with a disability. The Bus Transportation Order can include bus safety measures, as appropriate.
C. "Contract school" refers to any school that MNPS contracts with to provide educational services to students with a disability. As of the entry date of this Consent Decree, the only contract school MNPS contracts with is Genesis Academy.
D. "Cumulative Education File" refers to the file established by MNPS as the repository of all educational records for a particular student.
E. "Department of Special Education" refers to MNPS's Department of Exceptional Education.
F. "Department of Transportation" refers to MNPS's Department of Transportation. G. "IEP" refers to an Individualized Education Program, which is defined by federal statute
to mean a written statement for each student with a disability that is developed, reviewed, and revised in accordance with the provisions set forth in the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq (hereafter “IDEA”). H. "IEP process" refers to the federally mandated procedures set forth in the IDEA for developing, reviewing and/or revising an IEP for a particular student. See generally 20 U.S.C. § 1414(d).
3
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I. "Mainstream bus" refers to any MNPS-operated school bus, irrespective of size, that does not provide transportation exclusively to students with disabilities.
J. "MNPS school" refers to any school, whether operated directly by MNPS or through a contractor or charter, that provides educational services to students enrolled in MNPS.
K. "MNPS operated school" refers to any school that is directly operated by MNPS-employed personnel. This term is defined to exclude contract schools.
K. “SBI school" refers to any MNPS-operated school or any contract school that provides educational services to students through a Severe Behavior Intervention ("SBI") program. As of the entry date of this Consent Decree, the SBI schools (also referred to by MNPS as “special day schools”) include Cora Howe - Madison School, Genesis Academy, Murell School, Harris-Hillman School and Johnson School.
L. "Sexual harassment," for purposes of this consent decree, is defined to include any verbal, non-verbal, or physical conduct of a sexual nature that is unwelcome and that can deny or limit, on the basis of sex, a student’s ability to participate in or to receive educational benefits, services, or opportunities. See Revised Sexual Harassment Guidance: Harassment Of Students By School Employees, Other Students, Or Third Parties, United States Department of Education (2001).
M. "Special education bus" refers to any MNPS-operated school bus, irrespective of size, that provides transportation exclusively to students with disabilities.
N. "Student with a disability" is defined to include any student enrolled in MNPS who receives services or accommodations through an IEP.
O. "Video file" refers to the video recording of the interior of a school bus during a particular trip, as created and stored by the video monitoring equipment on the school 4
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 4 of 24

bus. III. GENERAL REQUIREMENTS
A. As required by Title IX, MNPS shall tak e appropriate action to elim inate any a nd all known unreasonable risk of sexual harassm ent to students with disa bilities who attend MNPS schools. See 20 U.S.C. § 1681(a); Davis v. Monroe County Board of Education , 526 U.S. 629 (1999).
B. The Superintendent of MNPS shall designate one official who repor ts directly to the Superintendent as the official responsible for ensuring th at MNPS com plies with the provisions of this Consent Decree (hereafter “Designated Official”).
C. MNPS shall provide the name, title, and contact information of the Designated Official to the United States. If at any time during the period this Consent Decree remains in effect MNPS designates a new Designated Official to perform this function, MNPS shall inform the United States in writing via electronic mail within five (5) days. IV. SPECIFIC REQUIREMENTS
A. BUS MONITORS 1. MNPS shall ensure that all sp ecial education buses are equipped with properly functioning video monitoring equipment. For each bus tr ip, this equipment shall record all students on the bus from the time the first student boards the bus to the time the last student departs. Each digi tal recording from a special education bus shall be retained and stored by MNPS for a period of no less than ten (10) business days. Each digital recording from a mainstream bus transporting at least one student with a disability shall be retained and stored by MNPS for a period of no less than twenty (20) business days. Each VHS recording from a mainstream 5
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 5 of 24

bus transporting at least one student with a d isability shall be retained and stored by MNPS for a period of no less than five (5) days. 2. MNPS shall assign a bus monitor to every special education school bus, and every bus that transports any student to an SBI school. Any student with a disability riding a mainstream bus who is determined by the Department of Special Education to pose an unreasonable risk of sexually harassing another student shall be transferred to a special education bus. Any student without a disability who is determined to pose an unreasonable risk of sexual harassing another student shall not be allowed to ride any MNPS school bus. 3. MNPS shall develop a policy that states the circumstances in which students with disabilities shall have a bus monitor assigned to his/her bus as an accommodation or related service. The Metropo litan Government must submit this policy to the United States for approval within thirty (30) days of the entry date of this Consent Decree. The policy shall be deemed a pproved unless the United States raises objections to the Metropolitan Governm ent within forty five (45) days of receipt. Any such students m ay be transferred to a special education bus that has a bus monitor already assigned pursuant to MNPS policy. 4 MNPS shall supplement the Prior Written Notice mailed to parents in advance of IEP meetings to include language that expressly notifies parents that MNPS provides bus monitors as an optional related service to students with disabilities. The Metropolitan Government must submit this supplement to the United States for approval within thirty (30) days of the entry date of this Consent Decree. The supplement shall be deem ed approved unless the United States raises objections
6
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 6 of 24

to the Metropolitan Government within forty five (45) days of receipt. 5. Any request for a bus monitor shall be documented in writing in the student’s
IEP, regardless of whether the student is ultimately provided with a bus monitor. 6. Every bus driver who operates a special education bus or a m ainstream bus that
transports at leas t one student with a disa bility shall be notifi ed verbally and in writing that he or she m ay initiate a reques t to the Departm ent of Special Education for a bus m onitor, which will be considered by the Department as a request for an optiona l related service for a s tudent with a disability . If the Department of Special Education determines that a bus monitor is necessary as an optional related service, the student shall be assigned to a bus with a bus monitor pursuant to Paragraph IV.A.3. 7. MNPS shall ensure, to the exten t feasible, that substitu te bus m onitors are available to staff school buses in the even t that the regularly-a ssigned monitor is absent from work. B. BUS ROSTERS AND TRANSPORTATION ORDERS 1. MNPS shall create a roster for every special education bus transporting students to a MNPS school (hereafter “Bus Roster”). 2. The Bus Roster for each special education bus shall reflect the date it was created and state the following information for each student assigned to the bus: a. The student’s name; b. The student’s gender; c. The student’s age; d. The school where the student is currently enrolled;
7
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 7 of 24

e. The student program code reflecting the particular student’s disability; and

f. The student’s Bus Transportation Order, if one exists.

3. Each Bus Roster shall also reflect whether a permanent bus monitor is assigned to

the

bus.

4. The Bus Rosters shall be maintained in a format accessible to the

Department of Transportation, the Department of Special Education, and the

principal.

5. An official in the Department of Transportation shall be appointed by MNPS as

the custodian of the Bus Rosters (hereafter “Bus Roster Custodian”).

6. Every bus driver and bus m onitor shall be provided a copy of the Bus Roster for

his or he r bus, and shall be re quired to f amiliarize themselves with the

information in the Bus Roster. Bus drivers and bus m onitors shall be inform ed

both verbally and in writing that the inform ation on the Bus Rosters is

confidential, that the inf ormation should not be disclosed or dissem inated to any

third parties, and that drivers and monito rs should take all necessa ry precautions

to ensure that the information reflected on the Bus Roster s is no t disclosed to

students on the bus or to other third parties.

7. Any time a substitute bus driver or substitute bus monitor is assigned to a special

education bus (either permanently or temporarily), the substitute bus driver or bus

monitor shall be provided a copy of the Bus Roster for the bus he or she is

assigned to drive or monitor. The substitute bus driver or bus monitor shall be

instructed to familiarize himself or herself with the information on the Bus Roster,

that the information on the Bus Rosters is confidential, that the information

8

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 8 of 24

should not be disclosed or disseminated to any third parties, and that drivers and

monitors should take all necessary precautions to ensure that the information

reflected on the Bus Rosters is not disclosed to students on the bus or to other

third

parties.

8. Any time a student assigned to a special education bus is arrested in connection

with a confirmed or suspected act of sexual harassment and the Metropolitan

Police Department has informed MNPS of the arrest, or anytime MNPS has

probable cause to believe that a student assigned to a special education bus has

committed an act of sexual harassment, or has been disciplined at school in

connection with a confirmed act of sexual harassment, the school principal shall

contact the Special Education Transportation Coordinator. Within five (5)

business days the Special Education Transportation Coordinator, in consultation

with the principal, shall:

a. Input a temporary em ergency Bus Tr ansportation Order for the student into MNPS’s HELPSTAR electronic data base; and
b. Disseminate the Bus Transportation Order to the bus driver and bus monitor.

9. Any time a student with a di sability requests transportation services, or requests a transfer from one M NPS-operated bus to another, the Special Education Transportation Coordinator shall make the requested assignment unless the Route Coordinator, in consultation with the principal, determines that the student is not an appropriate match for the bus requested.

a. In determining whether the student is an appropriate m atch, the Route 9

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 9 of 24

Coordinator shall consider:

(1) The requesting student’s age, gender, disabilities, and

behavioral history;

(2) The age, gender, disabilities, and behavioral history of the

curren

t student-passengers;

(3) For special education buses, the information reflected on

the Bus Roster and any accompanying Bus Transportation

Orders; and

(4) Whether a bus monitor is permanently assigned to the bus.

b. The Route Coordinator shall assign th e student to the bus unless a review

of this information indicates that:

(1) The student would pose an unreasonable threat of sexual

harassment to other students on the bus, or that the student himself

or herself would be at an unr easonable risk of being sexually

harassed; and

(2) There is no monitor assigned to the bus.

c. In the ev ent that the Route Coordi nator determines that a studen t with

disabilities is not an appropriate match for a particular bus, MNPS ma y

choose to either:

(1) Staff the bus with a perm anent monitor, in which case the student

may be assigned to the bus;

(2) Place the s tudent on another bu s for which he or sh e is an

appropriate match under the crit eria set f orth in Paragraph 10

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 10 of 24

IV.B.9.a. Metro shall ensure, to the extent feasible, that such placements do not im pose an unreasonable inconvenience on the student being placed; or (3) Leave the student on his or her or iginal assigned bus, if that bus is appropriate for the student given the criteria set forth in Paragraph IV.B.9.a. 10. When a student is added to a special education bus, the Bus Roster shall be modified to ref lect this change as well as th e date of modification, and the modified Bus Roster shall be distributed to the bus driver and bus monitor within ten (10) business days. 11. Every Bus Roster, and accom panying Bus Transportation Order(s) (if they exist) shall be reviewed at l east twice per schoo l year by th e Special Education Transportation Coordinator and principal to verif y that the information documented on the Bus Roster an d accompanying Bus Transportatio n Orders does not reveal an unreasona ble risk of sexual harassm ent to a student-passenger on a special education school bus. If this review reveals an unreasonable risk of sexual harassment on the school bus, th e Special Education Transportation Coordinator shall either: a. Assign a monitor to the bus in question; or b. Transfer students as ap propriate to elim inate the known threat of sexual harassment, pursuant to the criteria set forth in Paragraph IV.B.9.a. MNPS shall ensure, to the exten t feasible, that such transfers do not impose an unreasonable inconvenience on the students subject to the
11
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transfers. C. COMPLAINTS TO MNPS’S CUSTOMER SERVICE CENTER
1. While state law requir es that all r eports of a sexual assau lt of a child be reported not only to the loca l law enf orcement agency, the Tennessee Departm ent of Children Services and the princip al, MNPS shall create protocols to ensure that complaints of sexual h arassment on speci al education buses, or on m ainstream school buses transporting students with di sabilities, that are reported to MNPS’s Customer Service Center (hereafter “CSC”), are then communicated to appropriate officials at the Department of Transportation within twenty-four (24) business hours of th e time the co mplaint is received. T hese protocols shall specify a p oint of contact in the Depa rtment of Transportation to w hom CSC employees or the student’s principal can report these com plaints, and establish a system for CSC e mployees to log com plaints of sexual harassm ent. The Metropolitan Government m ust submit these protoco ls to the United States f or approval within thirty (30) days of the entry date of this Consent Decree. The protocols shall be deem ed approved unless the United States raises objections to the Metropolitan Government within forty five (45) days of receipt.
2. All parents and/or guardians of a student with a disability transported to school on a MNPS-operated school bus shall be notified verbally an d in writing about the methods for contacting the student’s prin cipal, which is MNPS’s preferred first point of contact for the parent or guar dian, or how to communicate with the CSC to report an alleged incident of sexual harassm ent. MNPS’s Ride Guide For Metropolitan Nashville Public Schools Special Needs and Special Services 12
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Students, will be amended within thirty (30) days of entry of this Consent Decree

to provide this notification to parents. The notification shall be deem ed approved

unless the United States raises objection to the Metropolitan Government within

forty five (45) days of receipt.

3. MNPS shall post on MNPS’s we bsite (www.mnps.org) a clearly-identified link to

the procedures for reporting all c omplaints of harassment, including alleged

incidents of sexual harassm ent on a MNPS-operated school bus. Thes

e

procedures shall include:

a. Contact information for the CSC;

b. Contact information for MNPS e mployee charged with coordinating the

school district’s Title IX compliance, see 34 C.F.R. § 106.8(a); and

c. Grievance procedures for resolvin g Title IX complaints required by

federal regulations. See 34 C.F.R. § 106.8(b).

4. On a weekl y basis, the Designated Offici al shall review all com plaints received

by the CSC regarding special education bus es to de termine if, in h is or her

opinion, there is a known unreasonable risk of sexual harassment by any student-

passenger or to any student-passenger on a special education bus. If this weekly

review indicates such unreasonab le risk and the principal, Special E ducation

Department or Transportation Departm ent has not taken appr opriate action, then

the Designated Official shall direct the Special Education Coordinator to:

a. Assign a monitor to the bus in question, or

b. Transfer students as appropriate to eliminate the threat of sex ual

harassment, pursuant to the criteria set forth in Paragraph IV.B.9.a. 13

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D. INCIDENT RESPONSE 1. Every bus monitor and every MNPS-em ployed bus driver who operates a special education bus, or a m ainstream bus that transports at least one stud ent with a disability and has a video cam era, shall be trained and required to imm ediately request a download of the video file from any shift where the m onitor or driver determines or suspects that an incident of sexual harassment may have occurred. 2. If any student, parent, guardian, bus dr iver, bus m onitor, or other individua l alleges that a studen t with a dis ability was sexually harassed on a special education bus or a m ainstream bus with a vid eo camera, MNPS officials sh all download and review the video file for the respective bus shift within one (1) business day of the initial request or allegation. 3. If the review of the video file indicates that there is probable cause to believe that a student with a disability m ay have been sexually harassed, MNPS shall take the following steps within two (2) business days of reviewing the video file: a. Notify the parents of the alleged victim(s); b. Interview the victim(s), bus driver, bus monitor, and other witnesses to the alleged incident as appropriate; c. Remove the alleged perpetrator(s) from the bus, if such action is deemed necessary to ensure that similar harassment will not recur while the investigation is pending; d. Inform officials at the school attended by the victim(s) and perpetrator(s); e. Inform the bus driver and the bus monitor (if a monitor is assigned to the bus); 14
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 14 of 24

f. Inform the Designated Official;

g. Inform the Special Education Transportation Coordinator. If subsequent

investigation reveals that the alleged perpetrator(s) committed an act of

sexual harassment, then the Special Education Transportation Coordinator,

in consultation with the principal, shall, pursuant to Paragraph IV.B.8,

update the student’s Bus Roster entry and circulate a new or modified Bus

Transportation

Order to reflect this information;

h. Retain and archive the video file of the incident. This video file shall not

be destroyed, overwritten, or altered in any fashion until a copy has been

provided to the United States pursuant to Paragraph V.B.4.c.

i. Review the perpetrator’s cumulative education file to determine whether

the student should be referred for evaluation pursuant to the school

district’s

child-find obligations under the IDEA. See 34 C.F.R. § 300.111.

4. MNPS shall take all reasonably necessary steps to minimize the likelihood that

similar acts of harassment will recur.

E. TRAINING

1. Every (1) bus m onitor, (2) substitute bus monitor, (3) bus driver, and (4)

substitute bus driver who operates a special education bus or mainstream bus that

transports at least one student with a disability, shall annually complete a

comprehensive professional developm ent training program (hereafter “Training

Program”) on the unique challenges, consid erations, concerns, and skills required

to transport students with disabilities on MNPS-operated buses.

2. The Training Program shall educate all attendees on the following topics:

15

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c. The characteristics of particular disabi lities with significan t incidence in MNPS’s student population (including, but not limited to, autism, autism spectrum disorder, visual im pairment, hearing i mpairment, emotional disturbance, mental retardation, speech or language impairment, traumatic brain injury, and other health impairments);
b. The unique challenges presented by stude nts with these disabilities, as set forth in MNPS’straining materials;
c. The laws that govern the transportation of students with disabilities, including: Title IX; th e IDEA; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134;
g. Nonviolent crisis intervention; h. The policies and protocols for requesting a bus monitor; and i. The student inform ation reflected on their sp ecific Bus Roster. See
Paragraph IV.B.2-3. 3. The Metropolitan Governm ent must submit MNPS’s train ing materials to the
United States for approval within thirty (30) days of the entry date of this Consent Decree. The materials shall be deem ed approved unless the United States raises objections to the Metropolitan Government within forty five (45) days of receipt. 4. All bus monitors and bus drivers who are required to complete the Training Program shall document their presence at the Training Program on sign-in sheets provided by MNPS. MNPS shall retain these sign-in sheets. Additionally, these bus monitors and bus drivers shall certify in writing that they have completed the
16
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 16 of 24

Training

Program.

5. All operators who staf f the CSC shall b e trained on the protocols developed by

MNPS, pursuant to Paragraph IV.C.1, for reporting alleged incidents of sexual

harassment on MNPS-operated school buses.

F. CUMULATIVE EDUCATION FILES

1. Metro shall create a form entitled “Cumulative Education File Certification Form”

(hereafter “File Certification Form”). The Metropolitan Government must submit

this File Ce rtification Form to the United Sta tes for approval within thirty (30)

days of the entry date of this Consen t Decree. The form shal l be deemed

approved unless the United States ra ises objections to the Metropolitan

Government within forty five (45) days of receipt.

2. Whenever MNPS transfers a student with disabilities from one MNPS school to

any other MNPS school, the principal at the receiving school shall review the

student’s complete cumulative education file within ten (10 ) business days of the

student’s enrollment. The principa l shall then certif y on the File Certif ication

Form that he or she reviewed the student ’s cumulative educ ation file within the

required time period.

3. Whenever a student with disabilities enrolls in an MNPS sc hool after attending a

school outside MNPS, the principal at the rece iving school shall, within five (5)

business days, request the student’s cum ulative education file from the sending

school district, and review the student’ s complete cum ulative education file

within ten (10) business days of receivi ng the cumulative education file from the

sending school district. The principal shal l then certify on the File Certif ication 17

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 17 of 24

Form that he or she reviewed the student ’s cumulative educ ation file within the

required time period.

4. Whenever a student with disabilities tr ansfers from one MNPS school to another

MNPS school without prior approval from MNPS, the princi pal at the receiving

school shall request the st udent’s cumulative education file from the sending

school within five (5) business days of the student’s enrollment.

a. Once the sending school receives this request from the principal of the

receiving school, it shall forward the student’s complete cumulative

education file to the receiving school within ten (10) business days.

b. Within ten (10) business days of receiving the student’s complete

cumulative education file from the sending school, the principal shall

review the student’s complete cumulative education file, and certify on the

File Certification Form that he or she reviewed the student’s cumulative

education

file within the required time period.

5. The original version of all completed File Certification Forms shall become part

of the student’s cumulative education file.

6. If any inf ormation in the student’s cumulative education f ile indicates to th e

principal at the receiv ing school th at the student poses an unreasonable risk of

perpetrating an act of sexual haras sment or being sexually harassed, the receiving

school shall immediately alert the Special Education Transportation Coordinator.

The Coordinator, in consultation with the principal, shall carry out the procedures

set forth in Paragraph IV.B.8. above.

7. IEPs, including Transportation Orders, shall be maintained electronically (through

18

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 18 of 24

EZ IEP and HELPSTAR) so that they ar e immediately accessible to approved MNPS personnel. 8. Before any principal approves an IEP, they shall attest to the f act that they have reviewed the student’s cumulative file on the IEP. If the IEP team determines that the student poses an un reasonable threat of sexually harassing another student or determines that the s tudent is at an unreasonable risk of bei ng sexually harassed, then the IEP team shall issue a Bus Tran sportation Order and instruct the Special Education Transportation Coordinator to ei ther assign the student to a b us with a monitor, or to tran sfer students as appropriate to elim inate the threat of sexual harassment, pursuant to the criteria set forth in Paragraph IV.B.9.a.
V. ANNUAL REPORTING TO THE UNITED STATES A. MNPS shall provide to the United States annu al reports that fully detail its ef forts to
comply with the provisions of this Consent Decree, any acts of non-compliance, and the remedial efforts undertaken to address those acts of non-compliance. MNPS shall submit the annual reports outlined herein each year by July 15, with the first report due July 15, 2010. B. The annual reports shall include the following inform ation from the school year preceding each annual report: 1. All written certifications generated in connection with the assignment or transfer
of a student to a special education bus, created pursuant to Paragraph IV.B.9.a; 2. All sign-in sheets and written certifications reflecting a MNPS employee’s annual
completion of the Training Program, as required by Paragraph IV.E.4;
19
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 19 of 24

3. Behavior incident reports, CSC complaint logs, and any other educational record

reflecting an alleged incident of sexual harassment on a special education bus, or

on a mainstream bus where the alleged victim or perpetrator was a student with a

disability. The documents produced pursuant to this sub-section shall contain no

redactions other than the name of the individual(s) who reported the incident

unless required by federal law;

4. A list of every bus (either special edu cation or mainstream) that transports at least

one student with a disability on which there was an allege d or verified incident of

sexual harassment during the preceding school year and;

a. Whether a permanent monitor was assigned to the bus;

b. A description of each alleged or verified incident of sexual harassment on

the bus during the school year;

c. A copy of the videotaped recording of each alleged or verified incident of

sexual harassment on the bus during the school year, if the recording

exists

; and

d. A description of how the alleged incident was investigated by MNPS

and/or

resolved.

VI. ENFORCEMENT

A. The Court shall retain jurisdiction to enforce the provisions of this Consent Decree.

B. If at any point during the dur ation of this Consent Decree MNPS chooses to m odify or

use a different version of any docum ent template generated for the purpose ofthis

Consent Decree, MNPS must submit the proposed new document to the United States for

approval. The proposed new docum ent shall be deem ed approved unless the United

20

Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 20 of 24

States raises objections to MNPS within f orty-five (45) days of r eceiving the document from MNPS. If the United States raises objections that the parties are unable to resolve, MNPS shall not be permitted to use the new document unless MNPS receives permission to do so from the Court. C. In the event of a dispute between the United States and the Metropolitan Government, the parties shall confer and attempt to reach an agreement on the disputed issue. If the parties are unable to reach a resolution, then either party may petition the Court for relief. The Metropolitan Governm ent understands and acknowledges that in the event of a breach of th is Consent Decree, the United St ates may petition the Court to enforce the specific commitments and obligations set forth in this Consent Decree. D. MNPS shall permit agents or repre sentatives of the United States to period ically assess the safety and security of special education buses and mainstream buses transporting at least one student with a disability. Upon reasonable no tice to MNPS, these agents or representatives shall be permitted to inspec t the cumulative education files of students with disabilities, ride any sp ecial education bus or m ainstream school bus transporting at least one student with a disability as obser vers, and to interview any bus driver, bus monitor, and/or any MNPS official with responsibility for implementing the provisions of this Consent Decree. E. MNPS shall m aintain records of all inf ormation identified in this Consent Decr ee as information pertinent to com pliance with th e terms of this Consent Decree while this Consent Decree is in effect and shall provide such information to the United States upon request, unless the inform ation has already been provided to the United States. The Metropolitan Government understands and acknowledges that the United States,
21
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 21 of 24

consistent with its responsibility to enforce Title IX, retains the right to investigate and, where appropriate, to participate in judicial proceedings regarding any future alleged violations of Title IX by MNPS.
VII. JUDICIAL TERMINATION A. This Consent Decree shall becom e effective on the date of its entry and shall rem ain in
effect until the date the Court orders its termination. B. Metropolitan Government may move for termination of this Consent Decree no sooner
than ten (10) days after the United Stat es receives the annual report for the 2013-14 academic year. The Metropo litan Government is permitted to file this report a nytime between June 1, 2014 and July 15, 2014. C. Nothing in this Consent Decree shall be construed to preclude the Metro politan Government from moving the Court to m odify the Cons ent Decree pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
VIII. COMPENSATION OF THE PRIVATE PLAINTIFF A. As provided in a separate settlem ent agreement between th e private plaintiff and the
Metropolitan Government, the sum of $1,475,000 shall be paid to the private plaintiff by or on behalf of the Metropolitan Government.
SO ORDERED, this ______ day of ___________________, 2010. ___________________________________ THE HONORABLE ROBERT L. ECHOLS United States District Judge
22
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 22 of 24

APPROVED:
For Plaintiff-Intervenor United States of America:
THOMAS E. PEREZ Assistant Attorney General
s/ Jonathan Fischbach AMY I. BERMAN (DC Bar # 480541) JONATHAN FISCHBACH (PA Bar # 92665) U.S. Department of Justice Civil Rights Division Educational Opportunities Section 950 Pennsylvania Ave., NW PHB, Suite 4300 Washington, D.C. 20530 Phone: (202) 514-4092 Fax: (202) 514-8337
EDWARD M. YARBROUGH United States Attorney Middle District of Tennessee
s/ Mark H. Wildasin Mark H. Wildasin (BPR # 015082) Assistant United States Attorney 110 Ninth Avenue South, Suite A-961 Nashville, Tennessee 37203-3870 Tel: (615) 736-5151
For Defendant Metropolitan Government of Nashville and Davidson County:
s/ James L. Charles JAMES L. CHARLES #9007 KEVIN C. KLEIN #22301 ALLISON L. BUSSELL #23538 Department of Law of the Metropolitan Government of Nashville and Davidson County Metropolitan Courthouse, Suite 108 P.O. Box 196300 Nashville, TN 37219-6300 Phone: (615) 862-6341 Fax: (615) 862-6352
Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 23 of 24

For Plaintiff Gilberto Lopez, by and through Cumberland Trust & Investment Company, as next friend and Trustee of Gilberto Kelly Lopez s/ W. Gary Blackburn____________ W. GARY BLACKBURN (#3484) JOHN RAY CLEMMONS (#25907) Blackburn & McCune, PLLC 101 Lea Avenue Nashville, Tennessee 37210 Telephone: (615) 254-7770 Facsimile: (615) 251-1385
24 Case 3:07-cv-00799 Document 488 Filed 01/27/2010 Page 24 of 24

 
 CASE−CLOSED,CONSENT−TO−MAGISTRATE,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:07−cv−00799

Lopez v. Metro Assigned to: Magistrate Judge Juliet E. Griffin Cause: 42:1983 Civil Rights Act
Plaintiff
Kimberly Lopez as guardian, next of friend and parent of Gilbert Lopez a minor, individually and as a member of a class of similarly situated individuals TERMINATED: 08/27/2009

Date Filed: 08/02/2007 Date Terminated: 11/15/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by John R. Clemmons Chaffin &Burnsed, PLLC The Fridrich Building 2909 Poston Avenue 1st Floor Nashville, TN 37203 (615) 460−7478 Fax: (615) 460−7484 Email: johnray@clemlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Malcolm L. McCune McCune Zenner Happell, PLLC 5200 Maryland Way Suite 120 Brentwood, TN 37027 (615) 425−3476 Fax: (615) 251−6958 Email: mmccune@mzhlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert T. Homlar Office of the District Attorney General 222 2nd Avenue North Washington Square, Suite 500 Nashville, TN 37201−1649 (615) 862−5500 Fax: (615) 862−5599 Email: rhomlar@jis.nashville.org TERMINATED: 05/01/2008 LEAD ATTORNEY

William Gary Blackburn The Blackburn Firm, PLLC 213 Fifth Avenue North Suite 300 Nashville, TN 37219 (615) 254−7770 Fax: (866) 895−7272 Email: gblackburn@wgaryblackburn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Gilberto Lopez, by and through the

represented by John R. Clemmons

Cumberland Trust &Investment

(See above for address)

Company as next friend and trustee of

LEAD ATTORNEY

The Gilberto Kelly Lopez Irrevocable

ATTORNEY TO BE NOTICED

Trust

Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 1 of 52

Malcolm L. McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Gary Blackburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
The Board of Education for the Metropolitan Nashville Public Schools TERMINATED: 09/14/2007

represented by Francis Howard Young Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862−6341 Email: frank.young@nashville.gov TERMINATED: 09/14/2007

James W. J. Farrar Middle Tennessee State University Office of General Counsel 116 Cope Administration Building Murfreesboro, TN 37132 (615) 898−2025 Fax: (615) 898−5383 Email: jfarrar@mtsu.edu TERMINATED: 09/14/2007

Defendant
Metropolitan Government of Nashville &Davidson County TERMINATED: 02/23/2010

represented by Allison L. Bussell Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862−6341 Email: allison.bussell@nashville.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason M. Bergeron Frost Brown Todd LLC (Nashville) 150 3rd Avenue South Suite 1900 Nashville, TN 37201 (615) 251−5550 Fax: (615) 251−5551 Email: jbergeron@fbtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keith W. Blair Taylor, Pigue, Marchetti &Mink, PLLC 2908 Poston Avenue Nashville, TN 37203 615−320−3225 Fax: 615−320−3244 Email: kblair@tpmblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin C. Klein Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 2 of 52

The Klein Law Office, PLLC 814 Church Street Suite 202 Nashville, TN 37203 (615) 600−4780 Fax: (615) 600−4780 Email: kevin.klein@thekleinlawoffice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Dale Bay Lewis, Thomason, King, Krieg &Waldrop, P.C. (Nashville) 424 Church Street Suite 2500 P O Box 198615 Nashville, TN 37219 (615) 259−1366 Fax: (615) 259−1389 Email: dbay@lewisking.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas F. Mink , II Mink &Duke, PLLC P O Box 198742 Nashville, TN 37219−8742 (615) 256−0138 Fax: (615) 730−5997 Email: tmink@minkdukelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis Howard Young (See above for address) TERMINATED: 07/07/2009

James W. J. Farrar (See above for address) TERMINATED: 07/07/2009

Defendant Genesis Learning Centers

represented by Benjamin M. Rose Law Offices of Ben M. Rose, PLLC P O Box 1108 Brentwood, TN 37024 (615) 390−6086 Email: ben@bmrfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James K. Simms , IV Thompson Burton PLLC 840 Crescent Centre Drive Suite 140 Franklin, TN 37067 (615) 465−6000 Email: jk@thompsonburton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay N. Chamness Cornelius &Collins, LLP P O Box 190695
Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 3 of 52

511 Union Street Suite 1500 Nashville, TN 37219−0695 (615) 244−1440 Fax: (615) 254−9477 Email: jnchamness@cornelius−collins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
United States Attorn US Attorney/MDTN TERMINATED: 02/23/2010

represented by Amy I. Berman Department of Justice−Civil Rights Division 950 Pennsylvania Avenue, NW Patrick Henry Building Suite 4300 Washington, DC 20530 (202) 305−3753 Fax: (202) 514−8337 Email: amy.berman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Fischbach Department of Justice Civil Rights Division Educational Opportunities Section 950 Pennsylvania Avenue, NW PHB, Suite 4300 Washington, DC 20530 (202) 305−3753 Fax: (202) 514−8337 Email: jonathan.fischbach@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luke A. McLaurin Department of Justice Civil Rights Division Educational Opportunities Section 950 Pennsylvania Avenue, NW PHB, Suite 4300 Washington, DC 20530 (202) 305−9937 Fax: (202) 514−8337 Email: luke.mclaurin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark H. Wildasin Office of the United States Attorney (MDTN) 110 Ninth Avenue, S Suite A961 Nashville, TN 37203−3870 (615) 736−2079 Fax: (615) 736−5323 Email: mark.wildasin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 4 of 52

V. Intervenor Defendant Metropolitan Government of Nashville &Davidson County TERMINATED: 02/23/2010
Interested Party Kolby Harris

represented by Allison L. Bussell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin C. Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Dale Bay (See above for address) ATTORNEY TO BE NOTICED
represented by Richard L. Tennent Bell, Tennent &Frogge, PLLC Bank of America Plaza 414 Union Street Suite 904 Nashville, TN 37219 (615) 244−1110 Fax: (615) 244−1114 Email: richard@btflaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/02/2007

# Docket Text
1 NOTICE OF REMOVAL by The Board of Education for the Metropolitan Nashville Public Schools from Circuit Court of Davidson County, Tennessee, case number 07−1687−IV.Filing fee paid $350. (Attachments: # 1 Original Complaint)(eh) (Entered: 08/03/2007)

08/02/2007

2 NOTICE from USDC Clerk regarding Corporate Disclosure Statement requirement (eh) (Entered: 08/03/2007)

08/02/2007

3 NOTICE of Initial Case Management Conference set for 10/5/2007 at 11:30 AM in Room 825 before District Judge Aleta A. Trauger. (eh) (Entered: 08/03/2007)

08/03/2007 08/03/2007
08/06/2007 08/07/2007

4 MOTION for Leave to Serve Expedited Discovery by Kimberly Lopez. (w/exhs. 1−4) (Homlar, Robert) Modified Text on 8/3/07 (jb). (Entered: 08/03/2007)
Note to Filer re DE #4−Each exhibit should be filed as a separate attachment to the main document and the mandatory description field used. The mandatory description field should be used to accurately describe the contents of yourattachment (labeling as Exhibit A, B C or Exhibit 1, 2, 3 is not sufficient). This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 08/03/2007)
5 RESPONSE to 4 Motion to Expedite Discovery filed by The Board of Education for the Metropolitan Nashville Public Schools. (Attachment: (1) Exhibit A − Affidavit of Sandra Burton) (Young, Francis) Modified on 8/7/07 (jb). (Entered: 08/06/2007)
Note to Filer re−DE #5−Signed affidavits should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 08/07/2007)

08/07/2007

6 ORDER denying 4 Plaintiff's Motion for Leave to Serve Expedited Discovery. Signed by Judge Aleta A. Trauger on 8/7/07. (jb) (Entered: 08/07/2007)

Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 5 of 52

08/14/2007 08/15/2007 08/16/2007 08/24/2007 08/24/2007
09/10/2007 09/10/2007
09/14/2007
09/14/2007 09/19/2007 09/19/2007
10/02/2007 10/03/2007 10/05/2007 10/05/2007

7 MOTION for Extension of Time to File Answer by The Board of Education for the Metropolitan Nashville Public Schools. (Young, Francis) (Entered: 08/14/2007)
8 MOTION to Correct Misjoinder by The Board of Education for the Metropolitan Nashville Public Schools. (Young, Francis) (Entered: 08/15/2007)
9 ORDER granting 7 Motion for Extension of Time to Answer; The Board of Education for the Metropolitan Nashville Public Schools answer due 8/24/2007 . Signed by Judge Aleta A. Trauger on 8/16/07. (km, ) (Entered: 08/16/2007)
10 MOTION to Dismiss by The Board of Education for the Metropolitan Nashville Public Schools. (Young, Francis) (Entered: 08/24/2007)
11 MEMORANDUM in Support of 10 MOTION to Dismiss filed by The Board of Education for the Metropolitan Nashville Public Schools. (Attachments: # 1 Appendix McKnight−unpublished case# 2 Appendix Fairview Titans−unpublished case# 3 Appendix Clark−unpublished case)(Young, Francis) (Entered: 08/24/2007)
12 MOTION to Amend Complaint by Kimberly Lopez. (Attachment: (1) Exhibit 1 − Amended Complaint)(Homlar, Robert) Modified Text on 9/10/07 (jb). (Entered: 09/10/2007)
13 RESPONSE in Opposition re 10 MOTION to Dismiss filed by Kimberly Lopez. (Attachments: # 1 Exhibit 1 − Weisbarth v. Geauga Park District, et al.# 2 Exhibit 2 − Westlaw − Lindsay v. Yates, et al.# 3 Exhibit 3 − Westlaw − McKnight et al. v. Gates# 4 Exhibit 4 − Westlaw − Hobson v. City of Memphis, et al.)(Homlar, Robert) (Entered: 09/10/2007)
14 ORDER granting 8 Motion to Correct Misjoinder. The Board of Education for the Metropolitan Nashville Public Schools shall be dropped as a deft, and the Metropolitan Government of Nashville and Davidson County shall be substituted as the sole deft; granting 12 Motion to Amend. Pltf shall file an amended complaint by 9/20/07; denying without prejudice 10 Motion to Dismiss. Signed by Judge Aleta A. Trauger on 9/14/07. (gi, ) (Entered: 09/14/2007)
15 AMENDED COMPLAINT against Metropolitan Government of Nashville &Davidson County, filed by Kimberly Lopez.(Homlar, Robert) (Entered: 09/14/2007)
16 MOTION to Dismiss Amended Complaint by Metropolitan Government of Nashville &Davidson County. (Young, Francis) (Entered: 09/19/2007)
17 MEMORANDUM in Support of 16 MOTION to Dismiss Amended Complaint filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Appendix McKnight v. Gates−unpublished case# 2 Appendix Fairview Titans v. Anderson−unpublished case# 3 Appendix Clark v. Banks−unpublished case)(Young, Francis) (Entered: 09/19/2007)
18 PROPOSED CASE MANAGEMENT ORDER filed by all parties. (Homlar, Robert) (Entered: 10/02/2007)
19 RESPONSE in Opposition re 16 MOTION to Dismiss Amended Complaint filed by Kimberly Lopez. (Attachments: # 1 Exhibit 1 − Carlos B. Hobson v. City of Memphis, et al.)(Homlar, Robert) (Entered: 10/03/2007)
Minute Entry for proceedings held before Judge Aleta A. Trauger : Case Management Conference held on 10/5/2007. Order to enter (Court Reporter none.) (bb−j) (Entered: 10/05/2007)
20 ORDER: Discussion at the initial case management conference held on 10/5/07 revealed that this case was a related case to Staehling v. Metropolitan Government of Nashville and Davidson County, Case No. 3:07−0797. Judge Trauger has conferred with Senior Judge Echols, who is assigned to the Staehling case, the earlier−filed case, and the judges are in agreement that, indeed, this case and the Staehling case are related under the factors set out in Administrative Order 176. This case is transferred to Senior Judge Echols for further handling. Signed by Judge Aleta A. Trauger on 10/5/07. (jb) (Entered: 10/05/2007)

Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 6 of 52

10/10/2007 10/24/2007
11/05/2007 11/13/2007 11/19/2007 11/27/2007 11/28/2007 11/30/2007 11/30/2007 12/03/2007
12/03/2007 12/07/2007 12/07/2007
12/13/2007

21 REPLY to Response to Motion re 16 MOTION to Dismiss Amended Complaint filed by Metropolitan Government of Nashville &Davidson County. (Young, Francis) (Entered: 10/10/2007)
22 ORDER: This case is REFERRED to Magistrate Judge Juliet E. Griffin for case management purposes pursuant to Local Rule 16.01. A proposed Initial Case Management Order has been filed by the parties (DE #18). Magistrate Judge Griffin will advise the parties by separate order concerning the re−setting of the Initial Case Management Conference. Signed by Judge Robert Echols on 10/23/07. (jb) (Entered: 10/24/2007)
23 MOTION for Consolidation and Argument in Support Thereof by Kimberly Lopez. (Attachment: (1) Exhibit 1 − David L. Carpenter et al. v. GAF Corporation, et al., Nicolet, Inc., et al.)(Homlar, Robert) Modified Text on 11/6/07 (jb). (Entered: 11/05/2007)
24 MOTION to Class Determination by Kimberly Lopez. (Homlar, Robert) Modified Text on 11/15/07 (jb). (Entered: 11/13/2007)
25 ORDER: The Initial Case Management Conference is rescheduled for 11/28/07 at 9:00 AM in Courtroom 764 before Magistrate Judge Juliet E. Griffin. Signed by Judge Juliet E. Griffin on 11/19/07. (jb) (Entered: 11/20/2007)
26 MOTION for Extension of Time to Respond to 24 MOTION for Class Determination by Metropolitan Government of Nashville &Davidson County. (Young, Francis) Modified Text on 11/27/07 (jb). (Entered: 11/27/2007)
Minute Entry for proceedings held before Judge Juliet E. Griffin : Initial Case Management Conference held on 11/28/2007; ORDER to enter. (Tape #G2007−126, 127.) (jwc) (Entered: 11/28/2007)
27 ORDER granting 26 Motion for Extension of Time to Respond to Motion for Class Determination. The time within which the defts shall respond to the motion is extended through 11/30/07. Signed by Judge Robert Echols on 11/30/07. (jb) (Entered: 11/30/2007)
28 MOTION to Revise 27 Order by Metropolitan Government of Nashville &Davidson County. (Young, Francis) Modified Text on 12/3/07 (jb). (Entered: 11/30/2007)
29 ORDER: The 28 deft's motion to revise order is granted. As addressed at the initial case management conference held on 11/28/07, the pltf withdrew its 24 motion for class determination without prejudice. The Clerk is directed to terminate the 24 motion for class determination as pending. The time for the pltf to file a renewed motion for class certification with an accompanying memorandum is extended to 12/7/07. Any response to such a motion shall be filed 2 weeks of the filing of the motion or by 12/21/07, if the revised motion is filed on 12/7/07. Any reply, if necessary, shall be filed within 2 weeks of the filing of the response or by 1/4/08, if the response is filed on 12/12/07. All other matters addressed at the 11/28/07, initial case management conference will be addressed by separate order. Signed by Judge Juliet E. Griffin on 12/3/07. (jb) (Entered: 12/03/2007)
30 RESPONSE to Motion re 23 MOTION for Consolidation and Argument in Support Thereof filed by Metropolitan Government of Nashville &Davidson County. (Young, Francis) (Entered: 12/03/2007)
31 RENEWED MOTION for Class Determination by Kimberly Lopez. (Homlar, Robert) Modified Text on 12/10/2007 (dt). (Entered: 12/07/2007)
32 MEMORANDUM in Support of 31 RENEWED MOTION for Class Determination filed by Kimberly Lopez. (Attachments: # 1 Exhibit 1 − Genesis Academy − Community Contact Log# 2 Exhibit 2 − Resp to Pltf First Set Rogs and RFP Docs# 3 Exhibit 3 − In Re: Aredia and Zometa Products Liability Litigation# 4 Exhibit 4 − Edward Day v. Check Brokerage Corp. et al.)(Homlar, Robert) Modified Text on 12/10/2007 (dt). (Entered: 12/07/2007)
33 MOTION for Leave to File Reply to 30 Defendant's Response to 23 Plaintiffs' Motion for Consolidation by Kimberly Lopez. (Attachments: (1) Exhibit 1 − Reply

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12/21/2007 12/21/2007 12/26/2007 12/31/2007
12/31/2007 12/31/2007 01/04/2008 01/04/2008 01/08/2008
01/09/2008 01/09/2008 01/09/2008 01/09/2008 01/10/2008 01/10/2008

to Defendant's Response to Plaintiffs' Motion for Consolidation)(Homlar, Robert) Modified Text on 12/13/07 (jb). (Entered: 12/13/2007)
34 RESPONSE to 31 Renewed MOTION for Class Determination filed by Metropolitan Government of Nashville &Davidson County. (Attachments: (1) Appendix Reeb 1 (2) Appendix Mason)(Young, Francis) Modified Text on 12/26/07 (jb). (Entered: 12/21/2007)
35 Second MOTION to Amend Complaint by Kimberly Lopez. (Attachments: (1) Exhibit 1 − Second Amended Complaint (2) Exhibit 2 − Affidavit of W. Gary Blackburn)(Homlar, Robert) Modified Text on 12/26/07 (jb). (Entered: 12/21/2007)
Note to Filer re DE #35−Signed affidavits should be filed as separate events, not as attachments to other pleadings. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 12/26/2007)
36 MOTION for Order Compelling Disclosure and Discovery and Memorandum of Law in Support Thereof by Kimberly Lopez. (Attachments: (1) Exhibit 1 − Plaintiffs Rogs/RFP Docs (2) Exhibit 2 − Deft Resp to Rogs/RFP Docs (3) Exhibit 3 − Homlar 11.29.07 Ltr to Young &Farrar (4) Exhibit 4 − Young 12.07.07 Ltr to Homlar (5) Exhibit 5 − Young 12.14.07 Ltr to Homlar (6) Exhibit 6 − Shereen Eicholtz v. J.C. Penney Co., et al. (7) Exhibit 7 − Brian Wayne Miner v. Kendall, et al.)(Homlar, Robert) Modified Text on 1/2/08 (jb). (Entered: 12/31/2007)
37 AFFIDAVIT of Robert T. Homlar in support of 36 MOTION for Order Compelling Disclosure and Discovery and Memorandum of Law in Support Thereof by Kimberly Lopez. (Homlar, Robert) Modified Text on 1/2/08 (jb). (Entered: 12/31/2007)
38 CERTIFICATE of Good Faith in Support of 36 Plaintiff's Motion for Order Compelling Disclosure and Discovery filed by Kimberly Lopez. (Homlar, Robert) Modified Text on 1/2/08 (jb). (Entered: 12/31/2007)
39 REPLY to Response to Motion re 24 MOTION to Class Determination filed by Kimberly Lopez. (Homlar, Robert) (Entered: 01/04/2008)
40 AFFIDAVIT of Kimberly D. Lopez in support of 39 REPLY to Response to Motion re 24 MOTION to Class Determination by Kimberly Lopez. (Homlar, Robert) Modified Text on 1/7/08 (jb). (Entered: 01/04/2008)
41 MOTION for Extension of Time to Respond to 35 Second MOTION to Amend Complaint and 36 MOTION for Order Compelling Disclosure and Discovery and Memorandum of Law in Support Thereof by Metropolitan Government of Nashville &Davidson County. (Young, Francis) Modified Text on 1/9/08 (jb). (Entered: 01/08/2008)
42 MOTION to Quash Deposition Subpoena by Kolby Harris. (Tennent, Richard) (Entered: 01/09/2008)
43 AFFIDAVIT of Richard Lewis Tennent in support of 42 MOTION to Quash Deposition Subpoena by Kolby Harris. (Tennent, Richard) Modified Text on 1/9/08 (jb). (Entered: 01/09/2008)
44 ORDER granting 33 Motion for Leave to File Reply to Deft's Response to Pltf's Motion for Consolidation. The Clerk is directed to give Pltf's reply a separate docket entry number. Signed by Judge Robert Echols on 1/9/08. (jb) (Entered: 01/09/2008)
45 REPLY to Deft's Response to 23 Pltf's Motion for Consolidation filed by Kimberly Lopez. (jb) (Entered: 01/09/2008)
46 SUBPOENA issued to Kolby R. Harris and returned executed on 01/09/2008 as to Kolby R. Harris by Kimberly Lopez (Homlar, Robert) (Entered: 01/10/2008)
47 SUBPOENA issued to Terrilynn Annette Harris and returned executed on 01/09/2008 as to Terrilynn Annette Harris by Kimberly Lopez (Homlar, Robert) (Entered: 01/10/2008)

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01/15/2008

48 SUBPOENA issued to Custodian of Records of Metro Government of Nashville and Davidson County and returned executed on 01/11/2008 as to Custodian of Records of Metro Government of Nashville and Davidson County by Kimberly Lopez (Homlar, Robert) (Entered: 01/15/2008)

01/17/2008

49 RESPONSE to Motion re 35 Second MOTION to Amend Complaint filed by Metropolitan Government of Nashville &Davidson County. (Young, Francis) (Entered: 01/17/2008)

01/22/2008

50 MOTION for Protective Order and Limiting Order Re: Subpoena of School Records by Kolby Harris. (Attachment: (1) Exhibit Notice of Subpoena)(Tennent, Richard) Modified Text on 1/22/08 (jb). (Entered: 01/22/2008)

01/22/2008

51 RESPONSE to 36 MOTION for Order Compelling Disclosure and Discovery and Memorandum of Law in Support Thereof filed by Metropolitan Government of Nashville &Davidson County. (Attachments: (1) Exhibit A−Notice of Deposition and Subpoena# 2 Exhibit B−Supplemental Response to Interrogatory No.1)(Young, Francis) Modified on 1/23/08 (jb). (Entered: 01/22/2008)

01/30/2008

52 MOTION for Leave to File Reply to 51 Defendant's Response to Plaintiffs' Motion to Compel by Kimberly Lopez. (Attachments: (1) Exhibit A − Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion to Compel (2) Exhibit 1 to Exh. A − Referenced Pages of Depo Transcript of Linda DePriest)(Homlar, Robert) Modified Text on 1/31/08 (jb). (Entered: 01/30/2008)

01/30/2008

53 RESPONSE to 50 MOTION for Protective Order and Limiting Order Re: Subpoena of School Records filed by Kimberly Lopez. (Homlar, Robert) Modified Text on 1/31/08 (jb). (Entered: 01/30/2008)

02/08/2008

54 SECOND MOTION for Protective Order and Limiting Order re: Subpoena of School Records by Kolby Harris. (Tennent, Richard) Modified Text on 2/8/08 (jb). (Entered: 02/08/2008)

02/13/2008

55 RESPONSE to 54 Second Motion for Protective Order and Limiting Order re: Subpoena of School Records filed by Kimberly Lopez. (Homlar, Robert) Modified Text on 2/13/2008 (jb). (Entered: 02/13/2008)

02/14/2008

56 NOTICE of Appearance by Thomas F. Mink, II on behalf of Metropolitan Government of Nashville &Davidson County (Mink, Thomas) (Entered: 02/14/2008)

02/20/2008

57 (DISREGARD THIS ENTRY−ATTY TO REFILE) Joint MOTION to Set Case Management Conference by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County, The Board of Education for the Metropolitan Nashville Public Schools. (Blackburn, William) Modified Text on 2/20/08 (jb). Modified on 2/21/08 (jb). (Entered: 02/20/2008)

02/21/2008

58 Joint MOTION to Set Case Management Conference by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County, The Board of Education for the Metropolitan Nashville Public Schools. (Blackburn, William) Modified Text on 2/21/08 (jb). (Entered: 02/21/2008)

02/29/2008

59 ORDER: The 58 Parties' Joint Motion to Set Case Management Conference is granted. A Case Management Conference is set for 3/6/08 at 9:00 AM in Courtroom 764. Signed by Judge Juliet E. Griffin on 2/29/08. (jb) (Entered: 02/29/2008)

03/05/2008

60 NOTICE of Withdrawal of 23 Motion for Consolidation by Kimberly Lopez. (Blackburn, William) Modified Text on 3/5/08 (jb). (Entered: 03/05/2008)

03/05/2008

61 Third MOTION to Amend 15 Complaint by Kimberly Lopez. (Attachment: # 1 Exhibit 1 − Third Amended Complaint by Plaintiffs)(Blackburn, William) Modified Text on 3/5/08 (jb). (Entered: 03/05/2008)

03/06/2008

62 MOTION for Summary Judgment by Plaintiffs by Kimberly Lopez. (Blackburn, William) (Entered: 03/06/2008)

03/06/2008

63 MEMORANDUM in Support of 62 MOTION for Summary Judgment by Plaintiffs filed by Kimberly Lopez Plaintiffs' Memorandum of Law in Support of Plaintiffs'

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Motion for Summary Judgment. (Attachments: # 1 Exhibit 1 − Depo. Transcript of Sandra Burton# 2 Exhibit 2 − Depo. Transcript of Linda DePriest# 3 Exhibit 3 − Depo. Transcript of Dr. Pedro Garcia# 4 Exhibit 4 − Defendant Response to Discovery# 5 Exhibit 5 − Defendant Metropolitan's Response to Discovery# 6 Exhibit 6 − Depo. Transcript of Gloria Smith# 7 Exhibit 7 − Depo. Transcript of Christopher Gaines# 8 Exhibit 8 − Eric Waller v. David Trippett# 9 Exhibit 9 − Cassia Enright et al. v. J.W. and T.P. et al.)(Blackburn, William) (Entered: 03/06/2008)

03/06/2008 03/06/2008 03/06/2008 03/06/2008

64 STATEMENT of Undisputed Material Facts in Support of 62 Plaintiffs' Motion for Summary Judgment filed by Kimberly Lopez. (Blackburn, William) Modified Text on 3/7/08 (jb). (Entered: 03/06/2008)
65 AFFIDAVIT of Kimberly D. Lopez in support of 62 MOTION for Summary Judgment by Plaintiffs by Kimberly Lopez. (Blackburn, William) Modified Text on 3/7/08 (jb). (Entered: 03/06/2008)
66 AFFIDAVIT of Terrilyn Harris in support of 62 MOTION for Summary Judgment by Plaintiffs by Kimberly Lopez. (Blackburn, William) Modified Text on 3/7/08 (jb). (Entered: 03/06/2008)
67 AFFIDAVIT of Robert T. Homlar in support of 62 MOTION for Summary Judgment by Plaintiffs by Kimberly Lopez. (Attachment: # 1 Exhibit A − IEP Regarding Gilbert Lopez)(Blackburn, William) Modified Text on 3/7/08 (jb). (Entered: 03/06/2008)

03/06/2008

68 MOTION for Leave to Physically File Exhibits by Kimberly Lopez. (Blackburn, William) (Entered: 03/06/2008)

03/06/2008

Minute Entry for proceedings held before Judge Juliet E. Griffin : Case Management Conference held on 3/6/2008; ORDER to enter. (Tape #G2008−044, 045.) (jwc) (Entered: 03/06/2008)

03/07/2008 03/07/2008
03/07/2008 03/07/2008

69 *MODIFIED per Order 268 − See Order for details* AGREED PROTECTIVE ORDER RE: 50 54 . Deft and Genesis are directed to within 10 days of the entry of this Order, produce the information and documents responsive to the Pltfs' subpoenas. Signed by Judge Juliet E. Griffin on 3/7/08. (jb) Modified text on 3/5/2009 (tmw). (Entered: 03/07/2008)
70 ORDER: Case Management Conference held 3/6/08. The 35 pltf's second motion to amend was granted. The 61 pltf's third motion to amend was granted. The Clerk is directed to file and docket the parties' third amended complaint attached to the motion and to add Genesis Learning Centers as a deft in this case. The 68 pltf's motion for leave to physically file exhibits is granted. The pltf shall be permitted to manually file CD−R's as exhibits to the third amended complaint. Entry of the Agreed Protective Order grants 50 54 Motions for Protective Order. The 42 motion to quash deposition is granted. The 23 motion for consolidation is denied. By 3/20/08, the parties shall file a joint statement as outlined in this order. The 41 deft's motion for extension of time is granted nunc pro. The 52 pltf's motion for leave to file reply is granted. The Clerk is directed to file and docket the plaintiff's reply and attached exhibit. The deft shall have until 3/26/08, to file a response to the motion for summary judgment. The pltf shall have 2 weeks from the filing of the response or until 4/9/08, if the response is filed on 3/26/08, to file a reply, if necessary. The parties shall proceed on the same discovery schedule as provided in the case of Staehling v. Metropolitan Government, 3−07−0797. Further Case Management Conference is set for 4/4/08 at 2:00 PM in Courtroom 764. Prior to April 4, 2008, counsel for the parties, including counsel for Genesis Learning Centers shall confer in an attempt to agree upon scheduling matters. Signed by Judge Juliet E. Griffin on 3/7/08. (jb) Modified on 3/7/08 (jb). (Entered: 03/07/2008)
71 THIRD AMENDED COMPLAINT against Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County, filed by Kimberly Lopez.(jb) (Entered: 03/07/2008)
72 REPLY to Deft's Response to 36 Pltfs' Motion to Compel filed by Kimberly Lopez. (Attachment: # 1 Exhibit 1−Excerpts of Deposition of Linda Depriest)(jb)

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(Entered: 03/07/2008)

03/12/2008

73 Summons issued as to Genesis Learning Centers. (jb) (Entered: 03/12/2008)

03/13/2008

74 SUMMONS returned executed by Kimberly Lopez. Genesis Learning Centers served on 3/13/2008. (Homlar, Robert) (Entered: 03/13/2008)

03/18/2008

75 MOTION to Strike and/or Continue 62 MOTION for Summary Judgment by Metropolitan Government of Nashville &Davidson County. (Mink, Thomas) Modified Text on 3/19/08 (jb). (Entered: 03/18/2008)

03/18/2008

76 MEMORANDUM OF LAW in Support of 75 MOTION to Strike and/or Continue 62 MOTION for Summary Judgment filed by Metropolitan Government of Nashville &Davidson County. (Mink, Thomas) Modified Text on 3/19/08 (jb). (Entered: 03/18/2008)

03/19/2008

77 NOTICE of Appearance by James K. Simms, IV &Jay N. Chamness on behalf of Genesis Learning Centers. (Simms, James) Modified Text on 3/19/08 (jb). (Entered: 03/19/2008)

03/21/2008

78 Joint STATEMENT Regarding 36 Plaintiffs' Motion to Compel by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County. (Homlar, Robert) Modified Text on 3/21/08 (jb). (Entered: 03/21/2008)

03/25/2008

79 RESPONSE to 75 Motion to Strike and/or Continue 62 MOTION for Summary Judgment filed by Kimberly Lopez. (Attachments: # 1 Exhibit 1 − Michael Oatman v. John Potter, et al.# 2 Exhibit 2 − Michael McHugh v. Olympia Entertainment, Inc., et al.)(Homlar, Robert) Modified Text on 3/25/08 (jb). (Entered: 03/25/2008)

03/25/2008

80 MOTION to Set Case for Trial by Kimberly Lopez. (Homlar, Robert) Modified Text on 3/25/08 (jb). (Entered: 03/25/2008)

03/25/2008

81 Joint STATEMENT Regarding 36 Plaintiffs' Motion to Compel by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County. (Homlar, Robert) Modified Text on 3/26/08 (jb). (Entered: 03/25/2008)

03/26/2008

82 (DISREGARD THIS ENTRY−ATTY TO REFILE) Joint MOTION Extending the Time for Defendant Metropolitian Government of Nashville and Davidson County's Response to 62 MOTION for Summary Judgment by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County. (Attachment: # 1 Stipulation)(Mink, Thomas) Modified Text on 3/26/08 (jb). (Entered: 03/26/2008)

03/26/2008

83 Joint MOTION Extending the Time for Defendant Metropolitian Government of Nashville and Davidson County's Response to 62 MOTION for Summary Judgment by Kimberly Lopez, Metropolitan Government of Nashville &Davidson County. (Attachment: # 1 Stipulation)(Mink, Thomas) Modified Text on 3/26/08 (jb). (Entered: 03/26/2008)

03/26/2008

84 NOTICE of Physically Filing Exhibit re 70 Order by Kimberly Lopez. (Homlar, Robert) Modified Text on 3/26/08 (jb). (Entered: 03/26/2008)

03/26/2008

Received Exhibit filed manually, see DE # 84 Notice. (jb) (Entered: 03/27/2008)

03/31/2008

85 MOTION to Dismiss Third Amended Complaint by Metropolitan Government of Nashville &Davidson County. (Mink, Thomas) (Entered: 03/31/2008)

03/31/2008

86 MEMORANDUM in Support of 85 MOTION to Dismiss Third Amended Complaint filed by Metropolitan Government of Nashville &Davidson County. (Mink, Thomas) (Entered: 03/31/2008)

04/01/2008

87 ORDER: Defendant Metropolitan Government's 16 Motion to Dismiss Amended Complaint is denied. Plaintiffs' 31 Renewed Motion for Class Determination is denied. Plaintiffs' 62 Motion for Summary Judgment is denied. Defendant Metropolitan Governments' 75 Motion to Strike and/or Continue Plaintiffs' Motion for Summary Judgment is denied. The 83 "Joint Motion Extending the Time for Defendant, Metropolitian [sic] Government of Nashville and Davidson County's Response to Plaintiff's Motion for Summary Judgment" is denied as moot. Each party shall be permitted to file one additional dispositive motion which shall include request to dismiss and/or a request for summary judgment as appropriate.

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04/02/2008 04/02/2008 04/04/2008 04/09/2008 04/09/2008 04/15/2008 04/25/2008 04/30/2008 05/01/2008 06/12/2008
06/27/2008
06/27/2008 06/27/2008 06/30/2008 07/02/2008

The deadline for filing of dispositive motions shall be set by Magistrate Judge Griffin at the previously scheduled 4/4/08 further case management conference. Signed by Senior Judge Robert Echols on 4/1/08. (jb) (Entered: 04/01/2008)
88 RESPONSE to Motion re 80 MOTION to Set Case for Trial filed by Genesis Learning Centers. (Simms, James) (Entered: 04/02/2008)
89 SUBPOENA issued to Sergeant Neal M. Cook, Evidence Custodian @ Metro Nashville Police Dept. and returned executed on 04/02/08 as to Sergeant Neal M. Cook, Evidence Custodian @ Metro Nashville Police Dept. by Kimberly Lopez (Homlar, Robert) (Entered: 04/02/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Oral Argument/Discovery Hearing held on 4/4/2008; ORDER to enter. (Tape #G2008−058, 059.) (jwc) (Entered: 04/08/2008)
90 NOTICE OF PHYSICALLY FILING EXHIBITS re 70 Order by Kimberly Lopez. (Blackburn, William) Modified Text on 4/9/08 (jb). (Entered: 04/09/2008)
Received Exhibits re: 90 Notice of Physically Filing Exhibits. (jb) (Entered: 04/09/2008)
91 ANSWER to 71 Amended Complaint Plaintiffs' Third Amended Complaint by Genesis Learning Centers.(Simms, James) (Entered: 04/15/2008)
92 NOTICE of Appearance by attorneys R. Dale Bay and Jason M. Bergeron on behalf of Metropolitan Government of Nashville &Davidson County (Bay, R. Dale) Modified text on 4/25/2008 (km). (Entered: 04/25/2008)
93 Fourth MOTION to Amend/Correct by Kimberly Lopez. (Attachments: # 1 Exhibit 1 − Fourth Amended Complaint)(Homlar, Robert) (Entered: 04/30/2008)
94 NOTICE of Appearance by John Ray Clemmons on behalf of Kimberly Lopez. (Blackburn, William) Modified on 5/9/2008 (gi). (Entered: 05/01/2008)
95 ORDER: 85 Motion to Dismiss Third Amended Complaint is denied, without prejudice to renewal once the pending fourth motion to amend 93 has been addressed and a final complaint is filed. The case is returned to the Magistrate Judge to address pltfs' fourth motion to amend 93 and motion to set case for trial 80 . The Magistrate Judge is directed to coordinate the trial date with Judge Echols' courtroom deputy. Signed by Senior Judge Robert Echols on 6/12/08. (km) (Entered: 06/12/2008)
96 ORDER: Case management conference was held on 4/4/08. Discovery is consolidated with discovery in case 3:07−0797, except for medical proof and expert discovery. Fact discovery to be completed by 8/15/2008; dispositive motions to be filed by 9/16/2008. Final Pretrial Conference set for 1/5/2009, 03:30 PM in Courtroom 874 before Senior Judge Robert Echols. Jury Trial set for 2/2/2009, 09:00 AM in Courtroom 874 before Senior Judge Robert Echols. Telephone Conference set for 6/30/2008, 03:00 PM before Magistrate Judge Juliet E. Griffin. Signed by Magistrate Judge Juliet E. Griffin on 6/27/08. (gi) (Entered: 06/30/2008)
97 ORDER granting 93 Motion to Amend Complaint. Signed by Magistrate Judge Juliet E. Griffin on 6/27/08. (gi) (Entered: 06/30/2008)
98 FOURTH AMENDED COMPLAINT against Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County, filed by Kimberly Lopez.(gi) (Entered: 06/30/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 6/30/2008; ORDER to enter. (jwc) (Entered: 06/30/2008)
99 ORDER following 06/30/08 telephone call with counsel for the parties. A Telephone Conference Call is set for 7/14/2008 04:00 PM with Magistrate Judge Juliet E. Griffin, call to be initiated by counsel for Deft Genesis. Signed by Magistrate Judge Juliet E. Griffin on 07/02/08. (ab) (Entered: 07/02/2008)

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07/14/2008

Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 7/14/2008; ORDER to enter. (jwc) (Entered: 07/15/2008)

07/15/2008

100 ORDER: Pursuant to Order 99 , counsel for the parties called the court on 7/14/08, and addressed the following: Pltf's counsel shall confirm med recs from the Memphis facility; The continuation of depositions of the pltf, Mrs. Harris, Dr. Depriest, and Marcus Hayes shall be taken August 18, 20, and/or 21, 2008, assuming schedules permit; The Fact Discovery deadline re dispositive motions is extended to 9/12/08; All other fact discovery shall be completed by 12/1/08; The Dispositive Motions deadline is extended to 9/30/08. The following matters were not addressed: Defts have until 7/28/08, to respond to 98 Fourth Amended Complaint; If the parties want to have the opportunity to provide rebuttal expert disclosures, counsel shall confer and agree upon such a deadline; The deadline for filing any discovery motion related to fact discovery necessary to support or defend any dispositive motion is extended to 9/15/08; If the parties are interested in mediation, they may arrange a conference call with the Court to address the issue. Signed by Magistrate Judge Juliet E. Griffin on 7/15/08. (tmw) Modified text on 7/17/2008 (tmw). (Entered: 07/15/2008)

07/18/2008

101 ORDER: The order entered 6/27/08, DE 96 , is AMENDED to reflect that the trial is scheduled to begin on Tuesday, 2/3/09, at 9:00 a.m. In all other respects, the 6/27/08, order remains in full force and effect. Jury Trial set for 2/3/09, at 9:00 AM, in Courtroom 874 before Senior Judge Robert Echols. Signed by Magistrate Judge Juliet E. Griffin on 7/18/08. (tmw) (Entered: 07/18/2008)

07/28/2008

102 ANSWER to 98 Amended Complaint, by Metropolitan Government of Nashville &Davidson County.(Bay, R. Dale) Modified text on 7/29/2008 (tmw). (Entered: 07/28/2008)

07/30/2008

103 MOTION to Modify 100 Case Management Order and to Continue TRIAL DATE by Genesis Learning Centers. (Simms, James) Modified text on 7/31/2008 (tmw). Modified text on 8/4/2008 (tmw). (Entered: 07/30/2008)

07/30/2008

104 AFFIDAVIT re 103 MOTION to Modify 100 Proposed Case Management Order and to Continue TRIAL DATE by Genesis Learning Centers. (Simms, James) Modified text on 7/31/2008 (tmw). Modified text on 8/5/2008 (tmw). (Entered: 07/30/2008)

08/04/2008

105 ORDER: To the extent that the deft intends to seek a modification of the 100 Order, the motion is DENIED to the extent that the deft seeks an extension of the deadline for completion of briefing any dispositive motion beyond 11/3/08. The Clerk is directed to forward the file in this case to the Honorable Robert L. Echols for his consideration of the motion of deft Genesis and accompanying affidavit DE #s 103 − 104 to continue the trial. Signed by Magistrate Judge Juliet E. Griffin on 8/4/08. (tmw) (Entered: 08/04/2008)

08/05/2008

106 Memorandum in Opposition to Motion for Continuance re 103 MOTION to Modify 100 Case Management Order and to Continue TRIAL DATE filed by Kimberly Lopez. (Attachments: # 1 Exhibit Affidavit)(Clemmons, John) Modified text on 8/7/2008 (tmw). (Entered: 08/05/2008)

08/08/2008

107 RESPONSE to Motion re 103 MOTION to Amend/Correct 18 Proposed Case Management Order MOTION to Continue TRIAL DATE filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 08/08/2008)

09/10/2008

108 MOTION for Leave to File Document Under Seal by US Attorney/MDTN. (Wildasin, Mark) (Entered: 09/10/2008)

09/10/2008

109 United States' Motion to Intervene, filed by US Attorney/MDTN. (Attachments: # 1 Complaint In Intervention)(Wildasin, Mark) Modified text on 10/10/2008 (tmw). (Entered: 09/10/2008)

09/10/2008

110 Sealed Document Memorandum of Law in Support of the United States' Motion to Intervene filed by US Attorney/MDTN. (Attachments: # 1 Case − Lovins, et al. v. Pleasant Hill Public School District, R−III, # 2 Case − Hoffman, et al. v. South Dakota High School Activities Association, et al.)(Wildasin, Mark) (Entered:

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09/10/2008 09/11/2008 09/16/2008 09/18/2008
09/24/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008 09/30/2008
10/03/2008

09/10/2008)
111 Certificate of Service, filed by US Attorney/MDTN. (Wildasin, Mark) Modified text on 10/10/2008 (tmw). (Entered: 09/10/2008)
112 RESPONSE to Motion re 108 MOTION for Leave to File Document Under Seal filed by Kimberly Lopez. (Clemmons, John) (Entered: 09/11/2008)
113 Amended Certificate of Service, filed by US Attorney/MDTN. (Wildasin, Mark) Modified text on 10/10/2008 (tmw). (Entered: 09/16/2008)
114 ORDER granting 103 MOTION to Modify Case Management Order and to Continue Trial Date. Accordingly, the final pretrial conference and the trial are hereby CONTINUED. This case is returned to the Magistrate Judge to establish a new trial date to commence no later than 5/26/09, to schedule a new final pretrial conference date, and to extend the discovery and dispositive motion deadlines accordingly. The Magistrate Judge shall ensure all pretrial discovery issues are resolved, any evidentiary issues are decided, and this case is ready for trial on the date scheduled without further intervention by the Court. All such matters should be resolved before the final pretrial conference. There will be no further continuances. Signed by Senior Judge Robert Echols on 9/18/08. (tmw) (Entered: 09/18/2008)
115 RESPONSE to Motion re 108 MOTION for Leave to File Document Under Seal filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 09/24/2008)
116 MOTION for Leave to to File Excess Pages for Summary Judgment Brief by Kimberly Lopez. (Clemmons, John) (Entered: 09/30/2008)
117 *Pltf WITHDREW per Order 126 * MOTION for Summary Judgment by Kimberly Lopez. (Clemmons, John) Modified text on 10/14/2008 (tmw). (Entered: 09/30/2008)
118 MEMORANDUM in Support of 117 MOTION for Summary Judgment filed by Kimberly Lopez. (Clemmons, John) (Entered: 09/30/2008)
119 AFFIDAVIT of Kimberly Lopez by Kimberly Lopez. (Clemmons, John) (Entered: 09/30/2008)
120 Sealed per Order 292 . AFFIDAVIT of Terrilyn Harris by Kimberly Lopez. (Attachments: # 1 Exhibit 1)(Clemmons, John) Modified text and securities on 5/13/2009 (tmw). (Entered: 09/30/2008)
121 Additional Attachments to Main Document re: 118 Memorandum in Support. (Clemmons, John) (Entered: 09/30/2008)
122 Additional Attachments to Main Document re: 118 Memorandum in Support. (Clemmons, John) (Entered: 09/30/2008)
123 Additional Attachments to Main Document re: 118 Memorandum in Support. (Clemmons, John) (Entered: 09/30/2008)
124 STATEMENT of facts material to summary judgment. (Attachments: # 1 Exhibit Harris 2004−2005 IEP, # 2 Exhibit Harris 2005−2006 IEP, # 3 Exhibit Harris Functional Behavioral Assessment, # 4 Exhibit Harris New Student IEP, # 5 Exhibit Harris Psychoeducational Assessment Report, # 6 Exhibit Sandra Burton Deposition Excerpts, # 7 Exhibit Linda DePriest Deposition Excerpts, # 8 Exhibit Chris Gaines Deposition Excerpts, # 9 Exhibit Dr. Pedro Garcia Deposition Excerpts, # 10 Exhibit Gloria Smith Deposition Excerpts, # 11 Exhibit Marcus Hayes Deposition Excerpts, # 12 Exhibit Melissa Adams Deposition Excerpts, # 13 Exhibit Terrence Adams Deposition Excerpts)(Clemmons, John) (Entered: 09/30/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 10/3/2008; ORDER to enter. (jwc) (Entered: 10/10/2008)

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10/06/2008 10/10/2008
10/10/2008
10/10/2008 10/10/2008 10/10/2008 10/14/2008 10/14/2008 10/15/2008 10/17/2008 10/20/2008

125 MOTION for Leave to File Reply Brief in Support of The United States' Motion to Intervene by US Attorney/MDTN. (Attachments: # 1 Reply Brief in Support of The United States' Motion to Intervene, # 2 Exhibit 1 − Doe v. Briley)(Wildasin, Mark) (Entered: 10/06/2008)
126 ORDER: Pltf withdrew 117 Motion for Summary Judgment. Motion 117 terminated. Jury Trial reset for 5/26/2009 09:00 AM in Courtroom 874 before Senior Judge Robert Echols. Pretrial Conference set for 4/27/2009 02:30 PM in Courtroom 874 before Senior Judge Robert Echols. Telephone Conference set for 10/13/2008 02:00 PM before Magistrate Judge Juliet E. Griffin, to be initiated by counsel for deft Genesis. Additional Telephone Conference set for 12/5/2008 02:00 PM before Magistrate Judge Juliet E. Griffin, to be initiated by counsel for deft Genesis. Fact Discovery due by 12/5/2008. Dispositive Motions due by 1/15/2009. Signed by Magistrate Judge Juliet E. Griffin on 10/10/08. (tmw) (Entered: 10/10/2008)
127 ORDER granting in part and denying in part 108 Motion for Leave to File Document Under Seal. The Clerk is directed to UNSEAL DE #s 111 , 113 and 109 . The proposed complaint in intervention DE # 109 −1 and the memorandum in support of the motion to intervene and attachments thereto DE #s 110 through 110 −2 shall remain UNDER SEAL. However, by 10/20/08, the US shall file a new proposed complaint in intervention and a new memorandum in support of the motion to intervene, redacting any information relating to K.H. that is not already of public record in this case or of public record in any other lawsuit. No information relating to Gilberto Lopez shall be redacted. Those filings shall not be maintained under seal. Alternatively, the US shall, by 10/20/08, file a notice that there is no information in the proposed complaint in intervention or the memorandum in support of the motion to intervene that contains information not already of public record in this case or of public record in any other lawsuit. In that event, DE #s 109 −1 and 110 through 110 −2 shall be unsealed. Signed by Magistrate Judge Juliet E. Griffin on 10/10/08. (tmw) Modified text on 10/10/2008 (tmw). (Entered: 10/10/2008)
128 ORDER: Leave is hereby granted for the parties in this action to take the depo of Kolby Harris. The depo shall be taken at the institution or facility where Kolby Harris is currently confined. The depo shall be taken on 11/21/08, or at a date and time convenient to the officials of the institution or facility in which Kolby Harris is currently confined. Signed by Magistrate Judge Juliet E. Griffin on 10/10/08. (tmw) (Entered: 10/10/2008)
129 ORDER granting 125 Motion for Leave to file a reply brief. The Clerk is directed to file and docket the reply of the United States, 125 −1, to the response 115 to the motion to intervene 109 . Signed by Magistrate Judge Juliet E. Griffin on 10/10/08. (tmw) (Entered: 10/10/2008)
130 United States' REPLY brief to the Response 115 to the Motion to Intervene 109 , filed by US Attorney/MDTN, per Order 129 . (tmw) (Entered: 10/10/2008)
131 NOTICE by Kolby Harris Status of Criminal Case, Incompetency &Objection to Deposition (Tennent, Richard) (Entered: 10/14/2008)
132 ORDER confirming depositions: The Court strongly urges the parties to schedule these depositions as soon as possible, even if they will not be taken until 2009, to avoid scheduling conflicts among counsel and the doctors. Signed by Magistrate Judge Juliet E. Griffin on 10/14/08. (cc: counsel for Kolby Harris) (tmw) (Entered: 10/14/2008)
133 ORDER granting Pltf's 116 Motion for Leave to Exceed Page Limitation for Memorandum in Support of Summary Judgment. Signed by Senior Judge Robert Echols on 10/15/08. (tmw) (Entered: 10/15/2008)
134 ORDER: Pltf withdrew her Motion for Summary Judgment. Accordingly, the Motion to Exceed Page Limitation 116 is hereby DENIED as moot. Signed by Senior Judge Robert Echols on 10/17/08. (tmw) (Entered: 10/17/2008)
135 NOTICE by US Attorney/MDTN (Attachments: # 1 Exhibit October 17, 2008 Richard Tennent letter)(Wildasin, Mark) (Entered: 10/20/2008)

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10/20/2008

136 ORDER: The Clerk is directed to UNSEAL the proposed complaint in intervention (Docket Entry No. 109−1) and the supporting memorandum and attachments thereto (Docket Entry Nos. 110 through 110−2). Signed by Magistrate Judge Juliet E. Griffin on 10/20/08. (tmw) (Entered: 10/20/2008)

10/22/2008

137 Emergency MOTION for Protective Order to amend agreed Protective Order by US Attorney/MDTN. (Attachments: # 1 Proposed Order Proposed Order Amending Agreed Protective Order)(Wildasin, Mark) (Entered: 10/22/2008)

10/22/2008

138 RESPONSE to Motion re 137 Emergency MOTION for Protective Order to amend agreed Protective Order filed by Kimberly Lopez. (Clemmons, John) (Entered: 10/22/2008)

10/22/2008

139 ORDER granting expedited 137 Motion of the United States to amend agreed protective order. With the agreement of counsel for the parties and counsel for Kolby Harris, and solely for the purpose of the agreed protective order 69 , the United States shall be included within the definition of "party" until a ruling on the pending motion to intervene. Signed by Magistrate Judge Juliet E. Griffin on 10/22/08. (tmw) (Entered: 10/23/2008)

11/04/2008

140 ORDER granting United States' 109 Motion to Intervene. The Clerk is directed to file and docket the complaint in intervention attached to the motion to intervene. Deft Metro shall have until 11/24/08, to file a response to the complaint in intervention. Signed by Magistrate Judge Juliet E. Griffin on 11/4/08. (tmw) (Entered: 11/04/2008)

11/04/2008

141 COMPLAINT IN INTERVENTION against The Metropolitan Government of Nashville and Davidson County, filed by The United States.(tmw) (Entered: 11/04/2008)

11/04/2008

142 ORDER: Deft Genesis shall have until 11/24/08, to file a response to the pltf's fourth amended complaint. Deft Genesis is not required to file a response to the intervening complaint. Signed by Magistrate Judge Juliet E. Griffin on 11/4/08. (tmw) (Entered: 11/04/2008)

11/17/2008

143 MOTION for Extension of Time to Complete Discovery Motion for Enlargement of Time to Respond to Plaintiff's First Set of Requests for Admissions by Metro Government of Nashville and Davidson County, Tennessee, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 11/17/2008)

11/18/2008

144 ORDER granting 143 Motion for Enlargement of Time. The time for deft Metro to serve responses to the pltf's first set of requests for admissions is extended to 11/24/08. Signed by Magistrate Judge Juliet E. Griffin on 11/18/08. (tmw) (Entered: 11/18/2008)

11/24/2008

145 MOTION to Quash and Memorandum by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A−Subpoena, # 2 Exhibit B−1.9.08 letter from Dept. of Justice, # 3 Exhibit C−Staehling/Lopez Response, # 4 Exhibit D−3.4.08 Fishbach letter, # 5 Exhibit E−Evans ltr to Dept. of Justice, # 6 Exhibit F−9.17.08 ltr from Dept. of Justice, # 7 Exhibit G−10.1.08 ltr to Fishbach)(Young, Francis) (Entered: 11/24/2008)

11/24/2008

146 ANSWER to Complaint Fourth Amended Complaint by Genesis Learning Centers.(Simms, James) (Entered: 11/24/2008)

11/24/2008

147 ANSWER to 141 Intervenor Complaint by Metro Government of Nashville and Davidson County, Tennessee, Metropolitan Government of Nashville &Davidson County.(Bay, R. Dale) (Entered: 11/24/2008)

12/01/2008

148 MOTION Motion for Release of Raw Psychological Data by Kimberly Lopez. (Clemmons, John) (Entered: 12/01/2008)

12/01/2008

149 Additional Attachments to Main Document re: 148 MOTION Motion for Release of Raw Psychological Data. (Clemmons, John) (Entered: 12/01/2008)

12/02/2008

150 ORDER granting Pltf's 148 Motion for the release of raw psychological data. The parties' agreed order granting the disclosure of confidential mental health records and information under T.C.A. § 33−3−105(d) and HIPAA is contemporaneously

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12/02/2008
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entered. Signed by Magistrate Judge Juliet E. Griffin on 12/2/08. (tmw) (Entered: 12/02/2008)
151 *MODIFIED per Order 268 − See Order for details* AGREED ORDER GRANTING THE DISCLOSURE OF CONFIDENTIAL PROTECTED MENTAL HEALTH RECORDS AND INFORMATION UNDER T.C.A. §33−3−105(3) and pursuant to HIPAA. Signed by Magistrate Judge Juliet E. Griffin on 12/2/08. (tmw) Modified text on 3/5/2009 (tmw). (Entered: 12/02/2008)
152 NOTICE of Appearance by Atty Jonathan Fischbach on behalf of US Attorney/MDTN (Wildasin, Mark) Modified text on 12/5/2008 (tmw). (Entered: 12/03/2008)
Bar status for Atty Jonathan Fischbach of PA/DC verified as active this date. (tmw) (Entered: 12/05/2008)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 12/5/2008; ORDER to enter. (jwc) (Entered: 12/08/2008)
153 RESPONSE in Opposition re 145 MOTION to Quash and Memorandum filed by US Attorney/MDTN. (Wildasin, Mark) (Entered: 12/09/2008)
154 ORDER: Telephone Conference set for 1/21/2009, at 5:00 PM, central time, before Magistrate Judge Juliet E. Griffin, to be initiated by counsel for the deft Genesis. The 12/5/08 ddl for completion of fact discovery is extended to 1/15/09. Signed by Magistrate Judge Juliet E. Griffin on 12/9/08. (tmw) (Entered: 12/09/2008)
155 REPLY to Response to Motion re 145 MOTION to Quash and Memorandum filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A−City Paper article)(Young, Francis) (Entered: 12/16/2008)
156 Additional Attachments to Main Document re: 155 Reply to Response to Motion. (Young, Francis) (Entered: 12/16/2008)
157 MOTION for Leave to leave to file sur−reply re motion to quash re 155 Reply to Response to Motion by US Attorney/MDTN. (Attachments: # 1 Exhibit [propose] sur−reply brief, # 2 Exhibit People v. Bachofer)(Wildasin, Mark) (Entered: 12/22/2008)
158 ORDER granting 157 Motion for leave to file sur−reply. The Clerk is directed to file and docket the Sur−Reply, attached to the motion. Signed by Magistrate Judge Juliet E. Griffin on 12/22/08. (ab) (Entered: 12/22/2008)
159 SUR−REPLY filed by the United States In Opposition to 145 Motion to Quash (Attachments: # 1 Exhibit The People of the State of CO v. Bachofer)(ab) (Entered: 12/22/2008)
160 Mail Returned as Undeliverable. 154 Order Setting Deadlines/Hearings. Mail sent to Jonathan Fischbach, Dept of Justice, Civil Rights Division, 950 Pennsylvania Ave NW, Ste 4300, Washington, DC 20530. (tmw) (Entered: 01/06/2009)
161 ORDER: As provided herein, the motion of deft Metropolitan Government of Nashville and Davidson County, TN, to quash subpoena 145 is DENIED. Signed by Magistrate Judge Juliet E. Griffin on 1/15/09. (tmw) (Entered: 01/15/2009)
162 ORDER: Local counsel for the US shall insure that the correct address is listed for Mr. Fischbach and/or otherwise determine why he did not receive the mailing sent to him so that he will receive copies of the contemporaneously entered order and all other orders entered in this case. Signed by Magistrate Judge Juliet E. Griffin on 1/15/09. (tmw) (Entered: 01/15/2009)
163 MOTION for Leave to File Excess Pages by US Attorney/MDTN. (Fischbach, Jonathan) (Entered: 01/15/2009)
164 MOTION for Summary Judgment by US Attorney/MDTN. (Fischbach, Jonathan) (Entered: 01/15/2009)

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165 MOTION for Leave to File Document Under Seal by US Attorney/MDTN. (Attachments: # 1 Exhibit 1)(Fischbach, Jonathan) (Entered: 01/15/2009)
166 MOTION for Summary Judgment, filed by US Attorney/MDTN. (Attachments: # 1 Statement of undisputed Facts, # 2 Memorandum of Law, # 3 Appendix, # 4 Exhibit 1 − Deposition of M. Adams, # 5 Exhibit 2 − Deposition of McRainey, # 6 Exhibit 3 − 8/14/06 IEP, # 7 Exhibit 4 − Lopez Cumm Ed File, # 8 Exhibit 5 − Contract Between Metro and Genesis, # 9 Exhibit 6 − Deposition of Phillips2, # 10 Exhibit 7 − Deposition of Hayes2, # 11 Exhibit 8 − Deposition of Sawyer, # 12 Exhibit 9 − Deposition of Pyle, # 13 Exhibit 10 − Deposition of Garcia, # 14 Exhibit 11 − Deposition of Rackard, # 15 Exhibit 12 − Deposition of Phillips, # 16 Exhibit 13 − Deposition of DePriest, # 17 Exhibit 14 − Deposition of Hayes, # 18 Exhibit 15 − Deposition of Gaines, # 19 Exhibit 16 − Deposition of Smith, # 20 Exhibit 17 − Deposition of T. Adams, # 21 Exhibit 18 − Deposition of Lopez, # 22 Exhibit 19 − Genesis Logs 12/9/06 &2/22/07, # 23 Exhibit 20 − Bates Docs with No Letter Prefix, # 24 Exhibit 21 − 4/17/07 IEP, # 25 Exhibit 22 − Deposition of Burton, # 26 Errata 23 − Harris Cum Ed File, # 27 Exhibit 24 − 5/7/07 Bus Incident Report, # 28 Exhibit 25 − 5/8/07 Download Request, # 29 Exhibit 26 − Metro Response to Interrog, # 30 Exhibit 27 − 5/15/07 Genesis Log, # 31 Exhibit 28 − Principal Bus Report, # 32 Exhibit 29 − Physical Intervention Report, # 33 Exhibit 30 − Deposition of Thompson, # 34 Exhibit 31 − 5/14/07 Genesis Logs, # 35 Exhibit 32 − 6/7/07 LifeCare Note, # 36 Exhibit 33 − 5/10/07 Genesis Log, # 37 Exhibit 34 − Emails Re Youth Villages, # 38 Exhibit 35 (Sealed) − 9/20/04 Suspension Addendum, # 39 Exhibit 36 (Sealed) − Deposition of Harris, # 40 Exhibit 37 − Deposition of DePreist2, # 41 Exhibit 38 − 12/6/05 Suspension Addendum, # 42 Exhibit 39 − Genesis Intake Forms, # 43 Exhibit 40 − Psychoeducational Assessment Rep, # 44 Exhibit 41 − Deposition of DeMoss, # 45 Exhibit 42 − Phillips Depo Exhibits, # 46 Exhibit 43 − 8/6/07 Memo from Phillips to Burton, # 47 Doe I v. Dallas, # 48 Kelly v. Yale, # 49 M v. Stamford, # 50 Patterson v. Hudson, # 51 SG v. Rockford, # 52 Snethen v. Savannah, # 53 Staehling v. Metro)(Fischbach, Jonathan) Modified text and securities per Order 292 on 4/13/2009 (tmw). (Entered: 01/15/2009)
167 MOTION for Leave to File Excess Pages by Genesis Learning Centers. (Simms, James) (Entered: 01/15/2009)
168 MOTION for Leave to File Document Under Seal by Genesis Learning Centers. (Simms, James) (Entered: 01/15/2009)
169 MOTION for Summary Judgment by Genesis Learning Centers. (Attachments: # 1 Exhibit 1 (Sealed) − (Deposition of Melissa Adams), # 2 Exhibit 2 (Deposition of Terrence Adams), # 3 Exhibit 3 (Deposition of Susan Sawyer), # 4 Exhibit 4 (Deposition of Jason Pyle), # 5 Exhibit 5a (Deposition of Kimberly Lopez Vol.1a), # 6 Exhibit 5b (Deposition of Kimberly Lopez Vol. 1b), # 7 Exhibit 6 (Deposition of Kimberly Lopez Vol. 2), # 8 Exhibit 7 (Sealed) − (Deposition of Terrilyn Harris), # 9 Exhibit 8 (Deposition of Lyn McRainey), # 10 Exhibit 9 (Deposition of Linda DePriest Vol. 2), # 11 Exhibit 10 (Deposition of Keith Phillips Vol. 2), # 12 Exhibit 11 (Deposition of Marcus Hayes Vol. 2))(Simms, James) Modified on 1/29/2009 (af). Modified text and securities per Order 292 on 4/13/2009 (tmw). (Entered: 01/15/2009)
Per Notification from US Atty's Office, MDTN, mailing address updated for atty Jonathan Fischbach, U.S. Department of Justice, Civil Rights Division, Educational Opportunities Section, 950 Pennsylvania Ave., NW, PHB, Suite 4300, Washington, DC 20530. (af) (Entered: 01/15/2009)
170 MEMORANDUM in Support of 169 MOTION for Summary Judgment filed by Genesis Learning Centers. (Simms, James) Modified Text on 1/15/2009 (dt). Modified text and unsealed per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
171 STATEMENT of facts filed by Genesis Learning Centers in support of 169 Motion for Summary Judgment. (Simms, James) Modified Text on 1/15/2009 (dt). Modified text and unsealed per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)

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172 MOTION for Leave to File Excess Pages by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 01/15/2009)
173 MOTION for Leave to File Document Under Seal by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 01/15/2009)
174 Motion for Summary Judgment, filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Fourth Amended Complaint, # 2 Exhibit Excerpts of Deposition of Kimberly Lopez, # 3 Exhibit Excerpts of Deposition of Marcus Hayes, # 4 Exhibit Affidvavit of Linda DePriest, # 5 Exhibit IEP of Gilberto Lopez dated 04/17/07, # 6 Exhibit Excerpts of Deposition of Keith Phillips, # 7 Exhibit Excerpts of Deposition of Jason Pyle, # 8 Exhibit Excerpts of Deposition of Susan Sawyer, # 9 Exhibit Excerpts of Deposition of Linda DePriest)(Bay, R. Dale) Modified on 1/23/2009 (af). Modified text and unsealed per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
175 MEMORANDUM of Law in Support of 174 Motion for Summary Judgment, filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) Modified text on 1/16/2009 (tmw). Modified text and unsealed per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
176 Statement of Undisputed Facts, filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) Modified text and unsealed per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
177 MOTION for Leave to File Document Under Seal by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) (Entered: 01/15/2009)
178 Motion for Summary Judgment as to Intervening Complaint, filed by Metro Government of Nashville and Davidson County, Tennessee. (Attachments: # 1 Exhibit Metropolitan Govt Responses to United States Interrogatories and Production of Documents, # 2 Exhibit Excerpts of Deposition of Melissa B. Adams, # 3 Exhibit Unreported case − Peer vs. Porterfield)(Bay, R. Dale) Modified on 1/23/2009 (af). Modified text and unsealed docs per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
179 MEMORANDUM of Law in Support of Motion for Summary Judgment as to Intervening Complaint, filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
180 Statement of Undisputed Facts as to Intervening Complaint, filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
181 First MOTION for Leave to File Document Under Seal by Kimberly Lopez. (Clemmons, John) (Entered: 01/15/2009)
182 MOTION for Leave to File Excess Pages Plaintiff's Memorandum in Support of Summary Judgment by Kimberly Lopez. (Clemmons, John) (Entered: 01/15/2009)
183 MOTION for Summary Judgment by Kimberly Lopez. (Clemmons, John) Modified on 1/23/2009 (af). Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
184 MEMORANDUM in Support of 183 MOTION for Summary Judgment filed by Kimberly Lopez. (Clemmons, John) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
185 NOTICE of Filing by Kimberly Lopez re 184 Memorandum in Support of Plaintiff 's Memorandum in Suppor tof Summary Judgment (Attachments: # 1 Exhibit Affidavit of Kimberly Lopez, # 2 Errata Excerpts of Kimberly Lopez Deposition (Vol.1,11/4/08), # 3 Exhibit Excerpts of Melissa Adams Deposition (Sealed), # 4 Exhibit Excerpts of Sandra Burton Deposition, # 5 Exhibit Excerpts of Kimberly Lopez Deposition (vol.2.12.1.08), # 6 Exhibit Excerpts of Linda DePriest Deposition (Vol.1.12.19.07), # 7 Exhibit 4/17/07 IEP Total Service Plan, # 8 Exhibit Excerpts of Terrilyn Harris Deposition (Sealed), # 9 Exhibit 5/16/02 IEP

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01/15/2009 01/16/2009 01/20/2009 01/20/2009 01/21/2009 01/26/2009 01/27/2009 01/29/2009
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Addendum, # 10 Exhibit 7/17/02 MNPS Letter, # 11 Exhibit 9/20/04 Suspension Addendum (Sealed), # 12 Exhibit Excerpts of Linda DePriest Deposition (Vol.II,10/27/08), # 13 Exhibit 2004−2005 IEP, # 14 Exhibit 2005 Functional Behavior Assessment, # 15 Exhibit 2005−2006 IEP, # 16 Exhibit Psychoeducational Assessment Report, # 17 Exhibit Excerpts of Lyn McRainey Deposition, # 18 Exhibit Affidavit of Terrilyn Harris (Sealed), # 19 Exhibit Excerpts of Jason Pyle Deposition, # 20 Exhibit 8/18/06 E−mail from Sharon Wright to Keith Phillips, # 21 Exhibit Terrence Adams Deposition, # 22 Exhibit Pedro Garcia Deposition, # 23 Exhibit Christopher Gaines Deposition (Sealed), # 24 Exhibit Susan Sawyer Deposition, # 25 Exhibit 1/06/06 New Student IEP Information Form, # 26 Exhibit 5/15/07 E−mail from Linda DePriest, # 27 Exhibit Marcus Hayes Deposition, # 28 Exhibit Gloria Smith Deposition)(Clemmons, John) Modified text and securities per Order 292 on 4/14/2009 &5/13/2009 (tmw). (Entered: 01/15/2009)
186 NOTICE by Kimberly Lopez re 184 Memorandum in Support of summary Judgment (Attachments: # 1 Appendix Dean v. Weakley County Board of Education, # 2 Appendix Enright v. Springfield School District)(Clemmons, John) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/15/2009)
187 STATEMENT of facts. (Clemmons, John) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 01/16/2009)
188 ORDER re Pltf's 181 Motion for Leave to File Documents Under Seal. Apparently, pltf did not select the "Sealed Document" event option when the filings that the pltf sought to be sealed were filed. However, based on the clear intent of the pltf, the Clerk is directed to place under seal 183 , 184 , 185 , 186 , and 187 . Signed by Magistrate Judge Juliet E. Griffin on 1/20/09. (tmw) Modified text on 1/20/2009 (tmw). (Entered: 01/20/2009)
189 ORDER: The motion of intervening pltf US to exceed page limitation 163 , the motion of deft Genesis to exceed page limitation 167 , the motion of deft Metro to exceed 172 , and the pltf's motion to exceed page limitation 182 are GRANTED. The Clerk is directed to forward the file in this case to the Honorable Robert L. Echols. Signed by Magistrate Judge Juliet E. Griffin on 1/20/09. (tmw) (Entered: 01/20/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 1/21/2009; ORDER to enter. (jwc) (Entered: 01/22/2009)
190 ORDER: Pursuant to the order entered 12/9/08, 154 , counsel for the parties called the Court on 1/21/09. Joint Status Report due by 1/30/2009. After completion of briefing the pending dispositive motions, the Court will schedule another telephone conference call with the parties to address whether it is appropriate to maintain all of the requested filings under seal. Signed by Magistrate Judge Juliet E. Griffin on 1/26/09. (tmw) (Entered: 01/26/2009)
191 MOTION for Extension of Time to File Objections to January 15, 2009 161 Order, by US Attorney/MDTN. (Attachments: # 1 Supplement United States v. Santana)(Fischbach, Jonathan) Modified text on 1/29/2009 (tmw). (Entered: 01/27/2009)
192 ORDER: Telephone conference held on 1/21/09. Discovery deadline reset for 3/6/2009. Telephone Conference is set for 3/4/2009 at 9:00 AM, central time, to be initiated by counsel for defendant Metro, to address whether it is necessary to maintain under seal all the filings made related to the pending motions for summary judgment3 and whether the parties can file redacted versions of the filings. Signed by Magistrate Judge Juliet E. Griffin on 1/29/09. (dt) (Entered: 01/29/2009)
193 ORDER: The Motion for Extension of Time to File Objections 191 is Granted. The time for the parties to file a motion to review the order entered 1/15/09 161 is extended to 3/2/2009. Signed by Magistrate Judge Juliet E. Griffin on 1/29/09. (dt) (Entered: 01/29/2009)

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194 MOTION for Leave to File Document Under Seal by US Attorney/MDTN. (Fischbach, Jonathan) (Entered: 02/05/2009)
195 SUBPOENA issued to Narciso Gaboy, MC and returned executed on 01/31/2009 as to Narciso Gaboy, MC by Kimberly Lopez (Clemmons, John) (Entered: 02/05/2009)
196 NOTICE to Take Deposition of Narciso Gaboy, MD by Kimberly Lopez.(Clemmons, John) (Entered: 02/05/2009)
197 RESPONSE to Defendant Metro's Statement of Undisputed Facts, filed by US Attorney/MDTN. (Attachments: # 1 Exhibit 44 − 4/20/07 MHC Progress Note, # 2 Exhibit 45 − 4/17/07 MHC Progress Note, # 3 Exhibit 46 − Additional Deposition Testimony of Lopez, # 4 Exhibit 47 − Additional Deposition Tesimony of M. Adams, # 5 Exhibit 48 − Additional Deposition Testimony of Harris (Sealed), # 6 Appendix B − Updated Index of United States' Exhibits)(Fischbach, Jonathan) Modified text and securities per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
198 RESPONSE in Opposition to Defendant Metro's Motion for Summary Judgment, filed by US Attorney/MDTN. (Fischbach, Jonathan) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
199 RESPONSE to Defendant Genesis' Statement of Undisputed Facts filed by US Attorney/MDTN. (Fischbach, Jonathan) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
200 MOTION for Leave to File Document Under Seal by Genesis Learning Centers. (Simms, James) (Entered: 02/05/2009)
201 RESPONSE to Plaintiff's Motion for Summary Judgment, filed by Genesis Learning Centers. (Attachments: # 1 Exhibit 1 − Affidavit of Terry Adams, # 2 Exhibit 2 − Letter to all Counsel, # 3 Exhibit 3 − Plaintiff's Rule 26 Expert Witnesses Disclosure, # 4 Exhibit 4 − Genesis' Response to Plaintiff's Request for Admission, # 5 Exhibit 5 − January 18, 2005 Memo)(Simms, James) Modified text and unsealed docs per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
202 RESPONSE To Plaintiff's 187 Statement of Undisputed Material Facts, filed by Genesis Learning Centers. (Simms, James) Modified text on 2/12/2009 (tmw). Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
203 STATEMENT of facts In Response to Plaintiff's Motion For Summary Judgment, filed by Genesis Learning Centers, in support of 201 Response. (Simms, James) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
204 MOTION for Leave to File Excess Pages by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/05/2009)
205 MOTION for Leave to File Document Under Seal by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/05/2009)
206 RESPONSE to Plaintiff's Motion for Summary Judgment, filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Affidavit of Judy Felts, # 2 Exhibit Expert reports of Dr. Thompson and Dr. Begtrup, # 3 Exhibit Affidavit of Linda DePriest, # 4 Exhibit Affidavit of Marcus Hayes, # 5 Exhibit 01/03/2006 IEP of Kolby Harris, # 6 Exhibit 12/19/2006 IEP of Kolby Harris, # 7 Exhibit Excerpts of Metro's Responses to Plaintiff's Request for Admissions, # 8 Exhibit Unreported Case − Staehling vs Metro Govt)(Bay, R. Dale) Modified text and unsealed docs per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
207 RESPONSE to Plaintiffs' 187 Statement of Undisputed Facts, filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)

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208 MOTION for Leave to File Document Under Seal by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) (Entered: 02/05/2009)
209 RESPONSE to Plaintiff−Intervenor United States of America's Motion for Summary Judgment, filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
210 RESPONSE to US' Statement of Undisputed Facts, filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) Modified text and unsealed doc per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
211 MOTION for Leave to File Excess Pages by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
212 MOTION for Leave to File Document Under Seal by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
213 RESPONSE in Opposition re 169 MOTION for Summary Judgment filed by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
214 NOTICE of Filing by Kimberly Lopez re 213 Response in Opposition to Motion Exhibits In Support of Plaintiffs Response to Genesis' Motion (Attachments: # 1 Exhibit Affidavit Kimberly Lopez, # 2 Exhibit Kimberly Lopez Deposition, # 3 Exhibit Melissa Adams Deposition (Sealed), # 4 Exhibit Sandra Burton deposition, # 5 Exhibit Kimberly Lopez deposition Vol.2, # 6 Exhibit Linda DePriest depostions Vol.1, # 7 Exhibit 4/17/07 IEP Total Service Plan, # 8 Exhibit Terrilyn Harris deposition (Sealed), # 9 Exhibit 5/16/02 IEP Addendum, # 10 Exhibit 7/17/02 MNPS Letter, # 11 Exhibit 9/20/04 Suspension Addendum (Sealed), # 12 Exhibit Linda DePriest deposition Vol. 2, # 13 Exhibit 2004−2005 IEP, # 14 Exhibit 2005 Functional Behavioral Assessment, # 15 Exhibit 2005−2006 IEP, # 16 Exhibit Psychoeducational Assessment Report, # 17 Exhibit Lyn McRainey Deposition, # 18 Exhibit Terrilyn Harris Affidavit (Sealed), # 19 Exhibit Jason Pyle Deposition, # 20 Exhibit 8/18/06 Email, # 21 Exhibit Terrence Adams deposition, # 22 Exhibit Pedro Garcia deposition, # 23 Exhibit Chris Gaines deposition (Sealed), # 24 Exhibit Susan Sawyer deposition, # 25 Exhibit 1/6/06 New Student IEP Info Form, # 26 Exhibit 5/15/07 Email, # 27 Exhibit Marcus Hayes Deposition, # 28 Exhibit Gloria Smith deposition, # 29 Exhibit 4/26/07, 4/27/07, 5/1/07 Emails (Sealed), # 30 Exhibit 7/27/07 Email, # 31 Exhibit 12/19/06 Behavioral Intervention Plan, # 32 Exhibit 4/1/08 Email, # 33 Exhibit 5/10/07 Email)(Clemmons, John) Modified text and securities per Order 292 on 4/14/2009 (tmw). (Entered: 02/05/2009)
215 MEMORANDUM in Support of 213 Response in Opposition to Motion filed by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
216 RESPONSE to Genesis Learning Centers' Statement of Facts and Statement of Additional Facts. (Clemmons, John) (Entered: 02/05/2009)
217 APPENDIX filed by Kimberly Lopez re 215 Memorandum in Support. (Attachments: # 1 Supplement Enright v. Springfield, # 2 Supplement Peer v. Porterfield, # 3 Supplement Staehling v. Metro, # 4 Supplement Wilson v. Metro)(Clemmons, John) (Entered: 02/05/2009)
218 MOTION for Hearing re 213 Response in Opposition to Motion for Oral Argument by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
219 MOTION for Leave to File Excess Pages by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
220 MOTION for Leave to File Document Under Seal by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
221 RESPONSE in Opposition re 174 SEALED MOTION to Metro's Motion for Summary Judgment filed by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)

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02/05/2009
02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/09/2009 02/11/2009 02/11/2009 02/19/2009 02/19/2009
02/19/2009 02/19/2009

222 NOTICE of Filing by Kimberly Lopez re 221 Response in Opposition to Motion Exhibits in Support of Plaintiffs Response to Metro's Motion for Summary Judgment (Attachments: # 1 Exhibit Kimberly Lopez Affidavit, # 2 Exhibit Kimberly Lopez deposition Vol. 1, # 3 Exhibit Melissa Adams deposition (Sealed), # 4 Exhibit Sandra Burton deposition, # 5 Exhibit Kimberly Lopez deposition Vol. 2, # 6 Exhibit Linda DePriest deposition Vol.1, # 7 Exhibit 4/17/07 IEP Total Service Plan, # 8 Exhibit Terrilyn Harris deposition (Sealed), # 9 Exhibit 5/16/02 IEP Addendum, # 10 Exhibit 7/17/02 MNPS letter, # 11 Exhibit 9/20/04 Suspension Addendum (Sealed), # 12 Exhibit Linda DePriest Deposition Vol. 2, # 13 Exhibit 2004−2005 IEP, # 14 Exhibit 2005 Function Behavioral Assessment, # 15 Exhibit 2005−2006 IEP, # 16 Exhibit Psychoeducational Assessment Report, # 17 Exhibit Lyn McRainey deposition, # 18 Exhibit Terrilyn Harris Affidavit (Sealed), # 19 Exhibit Jason Pyle Deposition, # 20 Exhibit 8/18/06 Email, # 21 Exhibit Terrence Adams deposition, # 22 Exhibit Pedro Garcia deposition, # 23 Exhibit Chris Gaines deposition (Sealed), # 24 Exhibit Susan Sawyer deposition, # 25 Exhibit 1/6/06 New Student IEP Info Form, # 26 Exhibit 5/15/07 email, # 27 Exhibit Marcus Hayes deposition, # 28 Exhibit Gloria Smith deposition, # 29 Exhibit 4/26/07, 4/27/07, 5/1/07 emails (Sealed), # 30 Exhibit 7/27/07 email, # 31 Exhibit 12/19/06 Behavior Intervention Plan, # 32 Exhibit 4/1/08 Email, # 33 Exhibit 5/10/07 email)(Clemmons, John) Modified text and securities per Order 292 on 5/13/2009 (tmw). (Entered: 02/05/2009)
223 MEMORANDUM in Support of 221 Response in Opposition to Motion filed by Kimberly Lopez. (Attachments: # 1 Exhibit Dean v. Weakley, # 2 Exhibit Enright v. Springfield Sch. Dist., # 3 Exhibit Peer v. Porterfield, # 4 Exhibit Staehling v. Metro, # 5 Exhibit Wilson v. Metro)(Clemmons, John) (Entered: 02/05/2009)
224 RESPONSE filed by Kimberly Lopez re 221 Response in Opposition to Motion filed by Kimberly Lopez to Metro's Statement of Facts and Statement of Additional Facts. (Clemmons, John) (Entered: 02/05/2009)
225 MOTION for Hearing re 221 Response in Opposition to Motion Oral Argument by Kimberly Lopez. (Clemmons, John) (Entered: 02/05/2009)
Note to filers re 201 , 206 , 214 &222 : Signed affidavits/declarations should be filed as separate events, not as attachments to other pleadings. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 02/12/2009)
226 SUBPOENA issued to Roberta Lara and returned executed on 2/9/09 as to Roberta Lara by Kimberly Lopez (Clemmons, John) (Entered: 02/09/2009)
227 RESPONSE in Opposition re 225 MOTION for Hearing re 221 Response in Opposition to Motion Oral Argument filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/11/2009)
228 RESPONSE to Motion re 225 MOTION for Hearing re 221 Response in Opposition to Motion Oral Argument filed by Genesis Learning Centers. (Simms, James) (Entered: 02/11/2009)
229 MOTION for Leave to File Document Under Seal by US Attorney/MDTN. (Fischbach, Jonathan) (Entered: 02/19/2009)
230 Sealed Document Reply Brief in Support of United States' Motion for Summary Judgment filed by US Attorney/MDTN. (Attachments: # 1 Exhibit 49 − 5/10/07 MHC Progress Note, # 2 Exhibit 50 − Youth Villages Discharge Plan, # 3 Exhibit 51 − 6/21/07 LifeCare Family Services Encounter Note, # 4 Appendix C − Index of United States' Exhibits, # 5 JK v. Arizona Bd of Regents)(Fischbach, Jonathan) (Entered: 02/19/2009)
231 Sealed Document (Unsealed per Order 292 ) Reply in Support of United States' Statement of Undisputed Facts filed by US Attorney/MDTN. (Fischbach, Jonathan) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
232 MOTION for Leave to File Document Under Seal by Genesis Learning Centers. (Simms, James) (Entered: 02/19/2009)

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02/19/2009

233 Sealed Document (Unsealed per Order 292 )Reply in Support of Genesis Learning Centers' Motion for Summary Judgment filed by Genesis Learning Centers. (Simms, James) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

234 Sealed Document (Unsealed per Order 292 )Second Affidavit of Terence W. Adams filed by Genesis Learning Centers. (Attachments: # 1 Exhibit 1− Position Description, # 2 Exhibit 2 − E−mail re: monitors)(Simms, James) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

235 MOTION for Leave to File Document Under Seal by Genesis Learning Centers. (Simms, James) (Entered: 02/19/2009)

02/19/2009

236 Sealed Document (Unsealed per Order 292 )Genesis Learning Center's Response to Plaintiff's Statement of Additional Material Facts filed by Genesis Learning Centers. (Simms, James) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

237 MOTION for Leave to File Document Under Seal by Kimberly Lopez. (Clemmons, John) (Entered: 02/19/2009)

02/19/2009

238 MOTION for Leave to File Document Under Seal to Plaintiff's Response to Motion for Summary Judgment by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/19/2009)

02/19/2009

239 Sealed Document (Unsealed per Order 292 )Metro's Reply to Plaintiff's Response to Motion for Summary Judgment filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Ex. A affidavit of Watkins, # 2 Exhibit B Metro Ltr re: docs responsive to subpoena)(Bay, R. Dale) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

240 REPLY to Response to Motion re 169 MOTION for Summary Judgment filed by Kimberly Lopez. (Clemmons, John) Modified text on 2/23 &3/5, 2009 (tmw). (Entered: 02/19/2009)

02/19/2009

241 MOTION for Leave to File Document Under Seal to US Response to Motion for Summary Judgment by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/19/2009)

02/19/2009

242 Sealed Document (Unsealed per Order 292 )Metro's Reply to US Response to Motion for Summary Judgment filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A Affidavit of Watkins, # 2 Exhibit B Ltr from metro re: docs responsive to subpoena)(Bay, R. Dale) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

243 Sealed Document (Unsealed per Order 292 ). MEMORANDUM in Support of 240 Reply to Response to Motion filed by Kimberly Lopez. (Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

244 Sealed Document (Unsealed per Order 292 ). STATEMENT of facts Response to Statement of Facts filed by Kimberly Lopez in support of 171 Statement of facts. (Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

02/19/2009

245 MOTION for Leave to File Document Under Seal by Kimberly Lopez. (Clemmons, John) Modified text on 2/23 &3/5, 2009 (tmw). (Entered: 02/19/2009)

02/19/2009

246 MOTION for Leave to File Excess Pages by Kimberly Lopez. (Clemmons, John) Modified text on 2/23 &3/5, 2009 (tmw). (Entered: 02/19/2009)

02/19/2009

247 REPLY filed by Kimberly Lopez re 206 Sealed Document, filed by Metropolitan Government of Nashville &Davidson County. (Clemmons, John) Modified text on 2/23 &3/5, 2009 (tmw). (Entered: 02/19/2009)

02/19/2009

248 Sealed Document (Unsealed per Order 292 ). MEMORANDUM in Support of 247 Reply filed by Kimberly Lopez to Metropolitan Government Response to Plaintiffs' Motion for Summary Judgment. (Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)

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02/19/2009 02/19/2009 02/19/2009
02/19/2009

249 Sealed Document (Unsealed per Order 292 ). STATEMENT of facts Plaintiffs' Statement of Additional Facts in Reply to Defendant Metropolitan Government of Nashville and Davidson County's Response to Plaintiffs' Motion for Summary Judgment. (Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
250 *DISREGARD − Atty re−filed at 251 * Sealed Document (Unsealed per Order 292 ). NOTICE of Filing by Kimberly Lopez re 240 Reply to Response to Motion for Summary Judgment (Clemmons, John) Modified text on 2/20 &23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
251 Sealed Document (Unsealed per Order 292 ). NOTICE of Filing by Kimberly Lopez re 240 Reply to Response to Motion (Attachments: # 1 Exhibit Affidavit Kimberly Lopez, # 2 Exhibit Deposition of Kimberly Lopez, # 3 Exhibit Deposition of Melissa Adams (Sealed), # 4 Exhibit Deposition of Sandra Burton, # 5 Exhibit Deposition of Kimberly Lopez, Dec. 1, 08 vol 2, # 6 Exhibit Deposition of Linda DePriest, # 7 Exhibit MNPS IEP '06−08, April 17, 2007, # 8 Exhibit Deposition of Terrilyn Harris, 10/28/08, (Sealed), # 9 Exhibit MNPS IEP 2002−03, 5/16/2002, # 10 Exhibit Thompson'Warren Letter 7/17/2002, # 11 Exhibit MNPS Suspension Addendum, 9/20/04, (Sealed), # 12 Exhibit Deposition of Linda DePriest, vol II, # 13 Exhibit MNPS IEP 04−05, 1/14/05, # 14 Exhibit MNPS Functional Behavioral Assessment, 2/04/05, # 15 Exhibit MNPS IED 05−06, 11/07/05, # 16 Exhibit MNPS Psychoeducational Assessment RPT 2/13/07, # 17 Exhibit Deposition of Lyn McRainey, PhD, # 18 Exhibit Affidavit of Terrilyn Harris (Sealed), # 19 Exhibit Deposition of Jason Pyle, 11/19/08, # 20 Exhibit Email' Keith Phillips 8/18/06, # 21 Errata Deposition of Terence W Adams, 4/15/08, # 22 Exhibit Deposition of Dr. Pedro Garcia, 1/23/08, # 23 Exhibit Deposition of Christopher Gaines (Sealed), # 24 Exhibit Deposition of Susan Sawyer, # 25 Exhibit New Student IEP Information 1/6/06, # 26 Exhibit Email from Linda DePriest, 5/15/07, # 27 Exhibit Deposition of Marcus Hayes, 8/18/08, # 28 Exhibit Deposition of Gloria Smith, # 29 Exhibit Email Melissa Adams, 4/26/07, (Sealed), # 30 Exhibit Email Melissa Adams, 7/20/07, # 31 Exhibit Behavior Intervention Plan Genesis Academy, # 32 Exhibit Memorandum Terry Adams/Pam Byrd, 4/1/08, # 33 Exhibit Email Melissa Adams 5/10/07, # 34 Exhibit Deposition of Keith Phillips, # 35 Exhibit Email Keith Phillips, 8/18/07, # 36 Exhibit Email Sharon Wright, 3/15/05, # 37 Exhibit J. Richard Navarre, II, M.D. Summary, 5/07/08, # 38 Exhibit Lawson Bernstein, M.D. 2/25/08 to Robert Homlar, # 39 Exhibit Def'Metro Amended Responses to Plaintiff's First Set of Requests for Admissions, # 40 Exhibit Kolby Harris Genesis Academy Weekly Counseling, 10/31/06, # 41 Exhibit Genesis Academy Significant Incident Report (Sealed), # 42 Exhibit Genesis Academy Significant Incident Report 11/10/06, # 43 Exhibit Fran Purcell letter, # 44 Exhibit Fran Purcell letter, # 45 Exhibit Genesis Academy Six Weeks Summary, # 46 Exhibit Genesis Academy Six Weeks Summary 3/5/07, # 47 Exhibit KolbyHarris Genesis Academy Significant Incident Report 5/15/07, # 48 Exhibit MNPS IEP 05−06, 11/7/05, # 49 Exhibit Backgroun Information, # 50 Exhibit Genesis Academy Initation to IEP Meeting 11/17/06)(Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
252 Sealed Document (Unsealed per Order 292 ). NOTICE of Filing by Kimberly Lopez re 247 Reply to Metro Response to Plaintiff's Motion for Summary Judgment (Attachments: # 1 Errata Affidavit of Kimberly D. Lopez, # 2 Exhibit Deposition of Kimberly Lopez 11/4/08, # 3 Exhibit Deposition of Melissa B. Adams, 4/15/08, (Sealed), # 4 Exhibit Deposition of Sandra Burton, # 5 Exhibit Deposition of Kimberly Lopez, 12/01/08 vol 2, # 6 Exhibit Deposition of Linda DePriest, 12/19/07, # 7 Exhibit MNPS IEP '06−'08 4/17/07, # 8 Exhibit Deposition of Terrilyn Harrins 10/28/08, (Sealed), # 9 Exhibit MNPS Plain '02−'03, 5/16/02, # 10 Exhibit Thompson, Warren letter 7/17/02, # 11 Exhibit MNPS Suspension Addendum 9/20/04, (Sealed), # 12 Exhibit Depositon of Dr. Linda Deprist vol II, # 13 Exhibit MNPS IEP '04−'05, # 14 Exhibit MNPS Functional Behavioral Assessment 2/04/05, # 15 Exhibit MNPS IEP '05−'06, 11/07/05, # 16 Exhibit MNPS Psychoeducational Assessment 2/13/07, # 17 Exhibit Deposition of Lyn McRainey, PhD, # 18 Exhibit Affidavit of Terrilyn Harris (Sealed), # 19 Exhibit Deposition of Jason Pyle, # 20 Exhibit Email from Keith Phillips 8/18/06, # 21 Exhibit Deposition of Terence W. Adams, # 22 Exhibit Deposition of Dr. Pedro

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02/19/2009
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Garcia, # 23 Exhibit Deposition of Christopher Gaines (Sealed), # 24 Exhibit Deposition of Susan Sawyer, # 25 Exhibit New Student IEP Information 1/6/06, # 26 Errata Email Linda DePriest 5/15/07, # 27 Exhibit Deposition of Marcus Hayes 8/18/08, # 28 Exhibit Deposition of Gloria Smith 2/19/08, # 29 Exhibit Email Sandy Burton 4/26/07, (Sealed), # 30 Exhibit Email Terry Adams 7/30/07, # 31 Exhibit Behavior Intervention Plan Genesis Academy 12/19/06, # 32 Exhibit Email Terry Adams, Pam Byrd 4/1/08, # 33 Exhibit Email Sandy Burton 5/10/07, # 34 Exhibit Deposition of Keith Phillips 10/27/08, # 35 Exhibit Email KeithPhillips 8/18/06, # 36 Exhibit Email Sharon Wright 3/15/05, # 37 Exhibit J. Richard Navarre, II Summary 5/07/08, # 38 Exhibit Lawson Bernstein Letter 2/25/08 to Robert Homlar, # 39 Exhibit Defendant Metropolitan Government of Nashville and Davidson County's Amended Responses to Plaintiff's First Set of Requests for Admissions, # 40 Exhibit Kolby Harris Genesis Academy Weekly Counseling, 10/31/06, # 41 Exhibit Genesis Academy Significant Incident Report 5/04/06, (Sealed), # 42 Exhibit Genesis Academy Significant Incident Report 11/10/06, # 43 Exhibit Fran Purcell Letter, # 44 Exhibit Fran Purcell Letter, # 45 Errata Genesis Academy Six Weeks Summary 11/13/06, # 46 Exhibit Genesis Academy Six Weeks Summary 3/05/07, # 47 Exhibit Genesis Academy Significant Incident Report 5/15/07, # 48 Exhibit MNPS IEP 11/7/05, # 49 Exhibit Kolby Harris Background Information, # 50 Exhibit Genesis Academy Invitation to IEP Meeting 11/17/06)(Clemmons, John) Modified text on 2/23/2009 (tmw). Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
253 APPENDIX filed by Kimberly Lopez re 243 Memorandum in Support. (Attachments: # 1 Appendix Dean v. Weakley, # 2 Appendix Enright v. Springfield, # 3 Appendix Peer v. Porterfield, # 4 Appendix Staehling v. Metro, # 5 Appendix Wilson v. Metro)(Clemmons, John) Modified text on 2/23 &3/5, 2009 (tmw). (Entered: 02/19/2009)
254 APPENDIX filed by Kimberly Lopez re 248 Memorandum in Support. (Attachments: # 1 Appendix Dean v. Weakley, # 2 Appendix Enright v. Springfield, # 3 Appendix Peer v. Porterfield, # 4 Appendix Staehling v. Metro, # 5 Appendix Wilson v. Metro Gov't)(Clemmons, John) (Entered: 02/19/2009)
255 MOTION for Leave to File Document Under Seal by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/19/2009)
256 Sealed Document (Unsealed per Order 292 )Response to Plaintiff Kimberly Lopez's Statement of Additional Facts filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Memo from Landrum to Overstreet dated 01/18/05)(Bay, R. Dale) Modified text and securities on 5/13/2009 (tmw). (Entered: 02/19/2009)
257 MOTION to Strike 249 Statement of facts, by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/25/2009)
258 MEMORANDUM in Support of 257 MOTION to Strike 249 Statement of facts, filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/25/2009)
259 MOTION to Strike 231 Sealed Document US Reply in Support of Statement of Undisputed Facts by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) (Entered: 02/25/2009)
260 MEMORANDUM in Support of 259 MOTION to Strike 231 Sealed Document US Reply in Support of Statement of Undisputed Facts filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) (Entered: 02/25/2009)
261 MOTION for Extension of Time to File Motion For Review Of The Court's January 15, 2009 Order by US Attorney/MDTN. (Attachments: # 1 Exhibit A −− Correspondence)(Wildasin, Mark) (Entered: 02/27/2009)
262 RESPONSE to Motion re 261 MOTION for Extension of Time to File Motion For Review Of The Court's January 15, 2009 Order filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A−February 20, 2009 letter)(Young, Francis) (Entered: 03/03/2009)

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03/03/2009
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03/05/2009
03/06/2009 03/06/2009 03/09/2009

263 ORDER granting 261 Motion for Extension of Time to Move for Review. The time for the United States to file a motion for review of the order entered 1/15/09, 161 is further extended to 4/1/09. Since deft Metro has represented that it has produced documents in accord with the 1/15/09, order, the Court urges the United States to file any motion for review as soon as possible so that it can be fully briefed well in advance of the 4/27/09, pretrial conference. Signed by Magistrate Judge Juliet E. Griffin on 3/3/09. (tmw) (Entered: 03/03/2009)
264 NOTICE of Dismissal of Criminal Case, On−Going Commitment of Kolby Harris, and Criminal Defense Atty "Steps Out of Civil Case." (Tennent, Richard) Modified on 3/4/2009 (tmw). (Entered: 03/03/2009)
265 US RESPONSE to Deft Metro's 259 MOTION to Strike 231 Sealed Document US Reply in Support of Statement of Undisputed Facts filed by US Attorney/MDTN. (Fischbach, Jonathan) Modified text on 3/4/2009 (tmw). (Entered: 03/03/2009)
266 MOTION to Strike Pltf's 244 Additional Statement of facts, or, in the Alternative, For Additional Time to Respond, by Genesis Learning Centers. (Simms, James) Modified text on 3/4/2009 (tmw). (Entered: 03/03/2009)
267 MEMORANDUM in Support of 266 MOTION to Strike 244 Statement of facts filed by Genesis Learning Centers. (Simms, James) (Entered: 03/03/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 3/4/2009; ORDER to enter. (jwc) (Entered: 03/04/2009)
268 ORDER: Pursuant to the order entered 1/29/09, 192 , counsel for the parties and Ray Throckmorton, who has recently entered an appearance as counsel for Terrilyn Harris in Harris v. Metro, 3−08−0859, called the Court on 3/4/09. To the extent that any sealed filings contain information covered under the protective order entered 3/7/08, 69 , or the order entered 12/2/08, 151 , such orders are hereby expressly MODIFIED to allow Mr. Throckmorton to be provided with copies of such filings and for the parties to be able to provide copies of such filings and documents to Jim Kay, who will be conducting the mediation in this case on 3/11/09. Mr. Throckmorton and Mr. Kay shall comply with the non−disclosure provisions of the 3/7/08, and 12/2/08, orders. Telephone Conference set for 4/1/2009, at 9:00 AM before Magistrate Judge Juliet E. Griffin, to be initiated by counsel for deft Genesis. Signed by Magistrate Judge Juliet E. Griffin on 3/4/09. (tmw) (Entered: 03/05/2009)
269 ORDER granting 211 Motion for Leave to File Excess Pages; granting 219 Motion for Leave to File Excess Pages. The Magistrate Judge declines to address the motion of deft Metro to exceed 204 and pltf's motion to exceed 246 , in deference to the Honorable Robert L. Echols because the parties seek to file a memorandum slightly more than 40 pages and a 26−page reply, respectively. As housekeeping matters, the Clerk is directed to remove from seal the following docket entries: (1) 240 ; (2) 245 ; (3) 246 ; (4) 247 ; and (5) 253 , which is a duplicate of 254 , which is not under seal. There is no reason for these filings to remain under seal. Signed by Magistrate Judge Juliet E. Griffin on 3/5/09. (tmw) (Entered: 03/05/2009)
270 RESPONSE in Opposition re 257 MOTION to Strike 249 Statement of facts, to Defendant Metropolitan Government of Nashville and Davidson County's Motion to Strike Plaintiff's Additional Statement of Facts filed by Kimberly Lopez. (Clemmons, John) (Entered: 03/06/2009)
271 RESPONSE in Opposition re 266 MOTION to Strike 244 Statement of facts to Defendant Genesis Learning Centers' Motion to Strike Plaintiff's Additional Statement of Facts filed by Kimberly Lopez. (Clemmons, John) (Entered: 03/06/2009)
272 NOTICE of Filing re 270 RESPONSE, by Kimberly Lopez, Pltf's Amended Response in Opposition to Deft Metro's Motion to Strike Pltf's Additional Statement of Facts (Attachments: # 1 Supplement − Pltfs' Amended Response In Opposition to Deft Metro's Motion to Strike Pltf's Additional Statement of Facts)(Clemmons, John) Modified text on 3/13/2009 (tmw). (Entered: 03/09/2009)

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03/09/2009 03/09/2009 03/10/2009 03/10/2009 03/10/2009 03/10/2009 03/12/2009
03/19/2009 04/01/2009 04/01/2009 04/01/2009 04/01/2009 04/02/2009 04/03/2009 04/03/2009 04/03/2009

273 MOTION for Leave to file the Reply Memorandum by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) Modified text on 3/13/2009 (tmw). (Entered: 03/09/2009)
274 REPLY to Response to Motion re 259 MOTION to Strike 231 Sealed Document US Reply in Support of Statement of Undisputed Facts filed by Metro Government of Nashville and Davidson County, Tennessee. (Bay, R. Dale) (Entered: 03/09/2009)
275 MOTION for attorney Luke McLaurin to Appear Pro Hac Vice by US Attorney/MDTN. (Attachments: # 1 Exhibit Sixth Circuit Certificate of Good Standing, # 2 Exhibit Proposed Entry of Appearance)(Wildasin, Mark) (Entered: 03/10/2009)
276 MOTION for Leave to file Reply Memorandum re 270 Response in Opposition to Motion, to Strike by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) Modified text on 3/13/2009 (tmw). (Entered: 03/10/2009)
277 REPLY filed by Metropolitan Government of Nashville &Davidson County re 270 Response in Opposition to Motion, filed by Kimberly Lopez. (Bay, R. Dale) (Entered: 03/10/2009)
Note to filer re 275 : Certificates of Good Standing should be filed as separate events, not as attachments to other pleadings. It is not necessary to re−file this document unless otherwise directed by the Court. (tmw) (Entered: 03/13/2009)
278 ORDER: By previous Order, this case was set for a jury trial on Tuesday, 5/26/09, beginning at 9:00 a.m., and for a Final Pretrial Conference in this Court on Thursday, 4/30/09,* at 2:00 p.m. Witness Lists and Exhibit Lists due by 4/22/2009. Joint Proposed Pretrial Order due by 4/22/2009. Signed by Senior Judge Robert Echols on 3/12/09. (tmw) (Entered: 03/13/2009)
279 MOTION for Review re 161 Order, Terminate Motions by US Attorney/MDTN. (Attachments: # 1 Exhibit A − Correspondence between the United States and Metro)(Fischbach, Jonathan) (Entered: 03/19/2009)
280 MOTION to Remand to State Court Plaintiff's claims arising under the Tennessee Governmental Torts Liability Act by Kimberly Lopez. (Clemmons, John) (Entered: 04/01/2009)
281 MEMORANDUM in Support of 280 MOTION to Remand to State Court Plaintiff's claims arising under the Tennessee Governmental Torts Liability Act filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/01/2009)
282 APPENDIX filed by Kimberly Lopez re 281 Memorandum in Support. (Attachments: # 1 Maxwell v. Conn, # 2 Turner v. Blount County, Tenn.)(Clemmons, John) (Entered: 04/01/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 4/1/2009; ORDER to enter. (jwc) (Entered: 04/01/2009)
283 RESPONSE to 279 MOTION for Review re 161 Order, filed by Metropolitan Government of Nashville &Davidson County. (Young, Francis) Modified text on 4/3/2009 (tmw). (Entered: 04/02/2009)
284 NOTICE of Filing of Notice of Withdrawal re 275 MOTION for attorney Luke McLaurin to Appear Pro Hac Vice, by US Attorney/MDTN . (Wildasin, Mark) Modified text on 4/3/2009 (tmw). (Entered: 04/03/2009)
285 MOTION for Leave to Appear of United States Government attorney and to Waive In Part Local Rule 83.01(d)(2) by US Attorney/MDTN. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Entry of Appearance)(Wildasin, Mark) Modified text on 4/3/2009 (tmw). (Entered: 04/03/2009)
Note to filer re 285 : Certificates of Good Standing should be filed as separate events, not as attachments to other pleadings. It is not necessary to re−file this document unless otherwise directed by the Court. (tmw) (Entered: 04/03/2009)

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04/03/2009

Bar status of Atty Luke A. McLaurin of NY verified as active this date. (tmw) (Entered: 04/03/2009)

04/06/2009

286 ORDER terminating as withdrawn 275 MOTION for atty Luke McLaurin to Appear Pro Hac Vice; granting 285 MOTION for Leave to Appear of US Govt atty. Pursuant to the order entered 3/4/09, 269 , counsel for the parties called the Court on 4/1/09. Parties shall, by 4/10/09, provide the Court with a joint statement of the filings that should be maintained under seal. Counsel were directed to confer with their experts and jointly notify the Court by 4/3/09, of the dates scheduled for the expert depositions. Signed by Magistrate Judge Juliet E. Griffin on 4/6/09. (cc: Atty Ray Throckmorton via email) (tmw) (Entered: 04/06/2009)

04/06/2009

287 NOTICE of Appearance by Luke A. McLaurin on behalf of United States of America. (tmw) (Entered: 04/06/2009)

04/07/2009

288 REPLY to Response to Motion re 279 MOTION for Review re 161 Order, Terminate Motions filed by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/07/2009)

04/07/2009

289 Joint MOTION for Extension of Time to File Motions in Limine and Motions Objecting to Expert Testimony by Genesis Learning Centers. (Simms, James) (Entered: 04/07/2009)

04/08/2009

290 ORDER: During the telephone conference call with counsel for the parties on April 1, 2009, and as memorialized in the order entered April 6, 2009 (Docket Entry No. 286 ), the parties were directed to notify the Court by April 3, 2009, of the dates scheduled for expert depositions. The Court has not heard from the parties about the schedule for expert depositions. By no later than April 10, 2009, the parties shall file a joint notice of the schedule of expert depositions, including the date, deponent, and location of each deposition. Signed by Magistrate Judge Juliet E. Griffin on 4/8/09. (km) (Entered: 04/08/2009)

04/09/2009

291 NOTICE by Genesis Learning Centers of Scheduling of Expert Depositions (Simms, James) (Entered: 04/09/2009)

04/13/2009

292 ORDER: In accord with the order entered 4/6/09, 286 , the parties have provided the Court by facsimile a joint listing of the documents that should remain under seal to protect confidential information related to third parties. Thus the pending motions to place documents under seal are resolved as follows: Granting in part and denying in part 165 Motion to Seal; granting in part and denying in part 168 Motion to Seal; denying 173 Motion to Seal; denying 177 Motion to Seal; granting in part and denying in part 181 Motion to Seal; granting in part and denying in part 194 Motion to Seal; denying 200 Motion to Seal; denying 205 Motion to Seal; denying 208 Motion to Seal; granting in part and denying in part 212 Motion to Seal; granting in part and denying in part 220 Motion to Seal; granting in part and denying in part 229 Motion to Seal; denying 232 Motion to Seal; denying 235 Motion to Seal; denying 237 Motion to Seal; denying 238 Motion to Seal; denying 241 Motion to Seal; granting in part and denying in part 245 Motion to Seal; denying 255 Motion to Seal. Signed by Magistrate Judge Juliet E. Griffin on 4/13/09. (tmw) (Entered: 04/13/2009)

04/15/2009

293 REPLY to Response to Motion re 164 MOTION for Summary Judgment (Redacted) filed by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/15/2009)

04/15/2009

294 RESPONSE to Motion re 280 MOTION to Remand to State Court Plaintiff's claims arising under the Tennessee Governmental Torts Liability Act filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/15/2009)

04/17/2009

295 ORDER: Final Pretrial Conference reset for 5/1/2009, at 2:00 PM in Courtroom 874 before Senior Judge Robert Echols. In all other respects, the Order entered 3/13/09, shall remain in full force and effect 278 . Signed by Senior Judge Robert Echols on 4/17/09. (tmw) (Entered: 04/17/2009)

04/20/2009

296 ORDER granting 289 Joint Motion to Extend Ddl for Filing Motions In Limine and Motions Objecting to Expert Testimony. The time within which to file said motions is hereby extended to Monday, 4/20/09. Responses are due Monday, 4/27/09. Signed by Senior Judge Robert Echols on 4/20/09. (tmw) (Entered:

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04/20/2009)

04/20/2009

297 CORPORATE DISCLOSURE STATEMENT filed by Genesis Learning Centers. (Simms, James) (Entered: 04/20/2009)

04/20/2009

298 MOTION in Limine to Exclude Certain Testimony of Plaintiff's Expert Dr. Lawson Bernstein by Genesis Learning Centers. (Attachments: # 1 Exhibit 1 − Affidavit of James K. Simms, IV, # 2 Exhibit 2 − Plaintiffs' Rule 26 Expert Witness Disclosure, # 3 Exhibit 3 − February 25, 2008 Letter from Dr. Bernstein, # 4 Exhibit 4 − March 23, 2008 Letter from Dr. Bernstein, # 5 Exhibit 5 − Videotape Deposition Transcript of Dr. Bernstein)(Simms, James) (Entered: 04/20/2009)

04/20/2009

299 MEMORANDUM in Support of 298 MOTION in Limine to Exclude Certain Testimony of Plaintiff's Expert Dr. Lawson Bernstein filed by Genesis Learning Centers. (Simms, James) (Entered: 04/20/2009)

04/20/2009

300 MOTION in Limine to Exclude Any Video or Photographic Evidence Produced by Plaintiff for Use at Trial by Genesis Learning Centers. (Simms, James) (Entered: 04/20/2009)

04/20/2009

301 MEMORANDUM in Support of 300 MOTION in Limine to Exclude Any Video or Photographic Evidence Produced by Plaintiff for Use at Trial filed by Genesis Learning Centers. (Simms, James) (Entered: 04/20/2009)

04/20/2009

302 MOTION in Limine Regarding Charaterization of School Bus Incident by Genesis Learning Centers. (Rose, Benjamin) (Entered: 04/20/2009)

04/20/2009

303 MEMORANDUM in Support of 302 MOTION in Limine Regarding Charaterization of School Bus Incident filed by Genesis Learning Centers. (Rose, Benjamin) (Entered: 04/20/2009)

04/20/2009

304 MOTION in Limine Regarding Use of the Term "Predator" by Genesis Learning Centers. (Rose, Benjamin) (Entered: 04/20/2009)

04/20/2009

305 MEMORANDUM in Support of 304 MOTION in Limine Regarding Use of the Term "Predator" filed by Genesis Learning Centers. (Rose, Benjamin) (Entered: 04/20/2009)

04/20/2009

306 NOTICE of Filing in further support of 304 MOTION in Limine Regarding Use of the Term "Predator", by Genesis Learning Centers. (Attachments: # 1 Exhibit Case from Foreign Jurisdiction (Part I), # 2 Exhibit Case from Foreign Jurisdiction (Part II), # 3 Exhibit Case from Foreign Jurisdiction, # 4 Exhibit Case from Foreign Jurisdiction)(Rose, Benjamin) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)

04/20/2009

307 (Identical to DE 309) MEMORANDUM in Support of 308 MOTION in Limine # 1 re: Exclusion of any reference to G.L.'s Chicago IEP containing a Bus Aide filed by Metropolitan Government of Nashville &Davidson County)(Bay, R. Dale) Modified on 9/21/2009 (af). (Entered: 04/20/2009)

04/20/2009

308 MOTION in Limine # 1 re: Exclusion of any reference to G.L.'s Chicago IEP containing a Bus Aide by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Caselaw − PD vs. Franklin Township Board of Education)(Bay, R. Dale) (Entered: 04/20/2009)

04/20/2009

309 MEMORANDUM in Support of 308 MOTION in Limine # 1 re: Exclusion of any reference to G.L.'s Chicago IEP containing a Bus Aide filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)

04/20/2009

310 MOTION in Limine # 2 re: Exclusion of all References to Dr. Lyn McRainey's Psychoeducational Assessment as a "Psychological Evaluation" or "Psychological Assessment" or "Psychological Report" by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)

04/20/2009

311 MEMORANDUM in Support of 310 MOTION in Limine # 2 re: Exclusion of all References to Dr. Lyn McRainey's Psychoeducational Assessment as a "Psychological Evaluation" or "Psychological Assessment" or "Psychological Report" filed by Metropolitan Government of Nashville &Davidson County. (Bay,

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04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009
04/20/2009
04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009

R. Dale) (Entered: 04/20/2009)
312 MOTION in Limine # 3 re: Exclusion of Testimony which identifies Third Party Students by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
313 MEMORANDUM in Support of 312 MOTION in Limine # 3 re: Exclusion of Testimony which identifies Third Party Students filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
314 MOTION in Limine # 4 re: Exclusion all Testimony regarding the Placement of Bus Monitors Outside of IEP Process by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
315 MEMORANDUM in Support of 314 MOTION in Limine # 4 re: Exclusion all Testimony regarding the Placement of Bus Monitors Outside of IEP Process filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
316 MOTION in Limine # 5 to exclude References to the May 7, 2007 Incident as "Rape," "Assault," or the Result of "Force" by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
317 MEMORANDUM in Support of 316 MOTION in Limine # 5 to exclude References to the May 7, 2007 Incident as "Rape," "Assault," or the Result of "Force" filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
318 MOTION in Limine # 6 to exclude of any Testimony of Dr. Warren Thompson referencing requirements as they existed under previous IDEA Regulations within his employment and experience with the Metropolitan Government of Nashville and Davidson County by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A − Dr. Warren Thompson deposition, # 2 Exhibit B − Dr. Warren Thompson report)(Bay, R. Dale) (Entered: 04/20/2009)
319 MEMORANDUM in Support of 318 MOTION in Limine # 6 to exclude of any Testimony of Dr. Warren Thompson referencing requirements as they existed under previous IDEA Regulations within his employment and experience with the Metropolitan Government of Nashville and Davidson Co filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
320 MOTION in Limine # 7 to exclude all Media reports and Information contained therein by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A − News story from Newschannel 5)(Bay, R. Dale) (Entered: 04/20/2009)
321 MEMORANDUM in Support of 320 MOTION in Limine # 7 to exclude all Media reports and Information contained therein filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
322 MOTION in Limine # 8 to exclude all video or photographic evidence produced and created by Plaintiff for use at trial by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Youth Villages Report)(Bay, R. Dale) (Entered: 04/20/2009)
323 MEMORANDUM in Support of 322 MOTION in Limine # 8 to exclude all video or photographic evidence produced and created by Plaintiff for use at trial filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
324 MOTION in Limine # 9 to exclude references to K.H. as a "Predator" by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
325 MEMORANDUM in Support of 324 MOTION in Limine # 9 to exclude references to K.H. as a "Predator" filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)

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04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009
04/20/2009

326 MOTION in Limine to Admit Out−of−Court Statements of Gilberto Lopez by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/20/2009)
327 MEMORANDUM in Support of 326 MOTION in Limine to Admit Out−of−Court Statements of Gilberto Lopez filed by US Attorney/MDTN. (Attachments: # 1 Exhibit A − 2/21/09 Youth Villages Individual Session Note)(McLaurin, Luke) (Entered: 04/20/2009)
328 MOTION in Limine # 10 re: Exclusion of Photographs taken by Kimberly Lopez of G.L. by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Photographs of G.L.)(Bay, R. Dale) (Entered: 04/20/2009)
329 MEMORANDUM in Support of 328 MOTION in Limine # 10 re: Exclusion of Photographs taken by Kimberly Lopez of G.L. filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
330 MOTION in Limine # 11 re: Exclusion of certain Electronic Mail Correspondence between Metro Officials by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A − Email correspondence)(Bay, R. Dale) (Entered: 04/20/2009)
331 MEMORANDUM in Support of 330 MOTION in Limine # 11 re: Exclusion of certain Electronic Mail Correspondence between Metro Officials filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
332 MOTION in Limine # 12 re: Exclusion of Office of Civil Rights Complaint and Consent Decree by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A − Correspondence, # 2 Exhibit B − Consent Decree)(Bay, R. Dale) (Entered: 04/20/2009)
333 MEMORANDUM in Support of 332 MOTION in Limine # 12 re: Exclusion of Office of Civil Rights Complaint and Consent Decree filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
334 MOTION in Limine # 13 to exclude certain testimony of Plaintiff's expert Dr. Lawson Bernstein by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
335 MEMORANDUM in Support of 334 MOTION in Limine # 13 to exclude certain testimony of Plaintiff's expert Dr. Lawson Bernstein filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
336 MOTION in Limine # 14 to exclude all evidence pertaining to Recovery of Expenses for Placement of G.L. at Youth Villages by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
337 MEMORANDUM in Support of 336 MOTION in Limine # 14 to exclude all evidence pertaining to Recovery of Expenses for Placement of G.L. at Youth Villages filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
338 MOTION in Limine to Exclude Opinions of Begtrup and Thompson by Kimberly Lopez. (Clemmons, John) (Entered: 04/20/2009)
339 NOTICE of Filing in support of 338 MOTION in Limine to Exclude Opinions of Begtrup and Thompson, by Kimberly Lopez. (Attachments: # 1 Exhibit Begtrup, MD Report, # 2 Exhibit Thompson PhD report, # 3 Exhibit Youth Villages records, # 4 Exhibit Indiana Family &Social Services Admin. records, # 5 Exhibit Lifespring Discharge Summary, # 6 Exhibit Vanderbilt Discharge Summary, # 7 Exhibit Vanderbilt records, # 8 Exhibit Dr. Navarre's May 7, 2008 letter)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)
340 MEMORANDUM in Support of 338 MOTION in Limine to Exclude Opinions of Begtrup and Thompson filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/20/2009)

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04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009 04/20/2009
04/20/2009 04/20/2009
04/20/2009

341 MOTION in Limine # 15 to exclude all testimony regarding all alleged discussions which occurred during certain IEP meetings for G.L. and K.H. by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
342 MEMORANDUM in Support of 341 MOTION in Limine # 15 to exclude all testimony regarding all alleged discussions which occurred during certain IEP meetings for G.L. and K.H. filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
343 MOTION in Limine # 16 re: Exclusion of any evidence regarding certain Disciplinary Incidents involving K.H. by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
344 MEMORANDUM in Support of 343 MOTION in Limine # 16 re: Exclusion of any evidence regarding certain Disciplinary Incidents involving K.H. filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
345 MOTION in Limine # 17 re: Exclusion of certain documents produced by Defendant in response to Subpoena by Intervening Plaintiff by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
346 MEMORANDUM in Support of 345 MOTION in Limine # 17 re: Exclusion of certain documents produced by Defendant in response to Subpoena by Intervening Plaintiff filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
347 MOTION in Limine # 18 re: Exclusion of Factual Allegations and Video of Incident in Staehling matter by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
348 MEMORANDUM in Support of 347 MOTION in Limine # 18 re: Exclusion of Factual Allegations and Video of Incident in Staehling matter filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/20/2009)
349 MOTION in Limine Omnibus by Kimberly Lopez. (Clemmons, John) (Entered: 04/20/2009)
350 APPENDIX A filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical Records)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)
351 APPENDIX B filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical records part one, # 2 Supplement to Exh. 2, # 3 Supplement to Exh. 2, # 4 Supplement to Exh.2, # 5 Supplement to Exh. 2, # 6 Supplement to Exh. 2, # 7 Supplement to Exh.2, # 8 Supplement to Exh.2, # 9 Supplement to Exh.2, # 10 Supplement to Exh.2)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)
352 APPENDIX C filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Exhibit 3 − Medical records, # 2 Supplement to Exh. 3, # 3 Supplement to Exh.3, # 4 Supplement to Exh.3, # 5 Supplement to Exh.3)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)
353 MEMORANDUM in Support of 349 MOTION in Limine Omnibus filed by Kimberly Lopez and Appendix of Unreported and Out of State Cases with complete cases exhibits. (Attachments: # 1 Appendix Unreported and Out−of−state Cases, # 2 Exhibit Rogers v. Wal−Mart, # 3 Exhibit Robenhorst, # 4 Exhibit Dunlap, # 5 Exhibit Vaught, # 6 Exhibit In re JDH, # 7 Exhibit In re Misty)(Clemmons, John) (Entered: 04/20/2009)
354 APPENDIX D filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical records, # 2 Supplement to Exh.4, # 3 Supplement to Exh.4, # 4 Supplement to Exh.4, # 5 Supplement to Exh.4, # 6 Supplement to Exh.4, # 7 Supplement to Exh.4, # 8 Supplement to Exh.4, # 9 Supplement to

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04/20/2009 04/20/2009 04/21/2009
04/21/2009 04/21/2009 04/21/2009 04/21/2009
04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009 04/22/2009

Exh.4)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/20/2009)
355 APPENDIX E filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical Records)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
Note to filer re 298 : Signed affidavits/declarations should be filed as separate events, not as attachments to other pleadings. It is not necessary to re−file this document unless otherwise directed by the Court. (tmw) (Entered: 04/22/2009)
356 APPENDIX F filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical records, # 2 Supplement to Exh.6, # 3 Supplement to Exh.6, # 4 Supplement to Exh.6, # 5 Supplement to Exh.6, # 6 Supplement to Exh.6)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
357 APPENDIX G filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Medical Records)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
358 APPENDIX H filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Exhibit 8 − Medical records)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
359 APPENDIX I filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Exhibit 9 − Medical records, # 2 Supplement to Exh.9)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
360 APPENDIX J filed by Kimberly Lopez re 349 Motion in Limine. (Attachments: # 1 Exhibit Exhibit Ten − Medical records, # 2 Supplement to Exh10, # 3 Supplement to Exh10, # 4 Supplement to Exh.10, # 5 Supplement to Exh.10, # 6 Supplement to Exh.10, # 7 Supplement to Exh.10, # 8 Supplement to Exh.10)(Clemmons, John) Modified text on 4/22/2009 (tmw). (Entered: 04/21/2009)
361 Witness List and Exhibit List by Genesis Learning Centers. (Simms, James) (Entered: 04/22/2009)
362 TRIAL BRIEF on Recoverable Damages by Genesis Learning Centers. (Simms, James) (Entered: 04/22/2009)
363 MOTION to Bifurcate Trial by Genesis Learning Centers. (Simms, James) (Entered: 04/22/2009)
364 MEMORANDUM in Support of 363 MOTION to Bifurcate Trial filed by Genesis Learning Centers. (Simms, James) (Entered: 04/22/2009)
365 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
366 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
367 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
368 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
369 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
370 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
371 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
372 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)

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373 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
374 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
375 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
376 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
377 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
378 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
379 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
380 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
381 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
382 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
383 Proposed Jury Instructions by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
384 Exhibit List by Metropolitan Government of Nashville &Davidson County.. (Bay, R. Dale) (Entered: 04/22/2009)
385 Witness List by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
386 Proposed Jury Verdict Form by Genesis Learning Centers, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
387 TRIAL BRIEF on damages by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/22/2009)
388 Proposed Jury Verdict Form by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
389 Exhibit List by Kimberly Lopez.. (Clemmons, John) (Entered: 04/22/2009)
390 Witness List by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
391 TRIAL BRIEF on Recoverable Damages by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
392 Proposed Pretrial Order by all parties. (McLaurin, Luke) (Entered: 04/22/2009)
393 TRIAL BRIEF on Damages Recoverable by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/22/2009)
394 Proposed Jury Instructions by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/22/2009)
395 Witness List by US Attorney/MDTN. (McLaurin, Luke) (Entered: 04/22/2009)
396 Exhibit List by US Attorney/MDTN.. (McLaurin, Luke) (Entered: 04/22/2009)
397 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)

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398 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
399 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
400 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
401 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
402 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
403 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
404 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
405 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
406 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
407 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
408 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
409 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
410 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
411 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
412 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
413 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
414 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
415 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
416 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
417 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
418 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
419 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
420 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 04/22/2009)
421 RESPONSE in Opposition re 338 MOTION in Limine to Exclude Opinions of Begtrup and Thompson filed by Genesis Learning Centers. (Attachments: # 1

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04/27/2009 04/27/2009
04/27/2009
04/27/2009 04/27/2009 04/27/2009 04/27/2009 04/27/2009 04/27/2009 04/27/2009 04/27/2009 04/27/2009

Exhibit 1 − Dr. Begtrup's Report, # 2 Exhibit 2 − Kimberly Lopez Depo Excerpts, # 3 Exhibit 3 − Dr. Navarre Depo, # 4 Exhibit 4 − Dr. Begtrup Depo, # 5 Exhibit 5 − Mount Sinai Medical Records, # 6 Exhibit 6 − Dr. Thompson's Report, # 7 Exhibit 7 − Youth Villages Records)(Simms, James) (Entered: 04/27/2009)
422 RESPONSE in Opposition re 326 MOTION in Limine to Admit Out−of−Court Statements of Gilberto Lopez filed by Genesis Learning Centers. (Simms, James) (Entered: 04/27/2009)
423 RESPONSE in Opposition re 326 MOTION in Limine to Admit Out−of−Court Statements of Gilberto Lopez describing May 7, 2007 incident filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Ex. A Youth Villages Med Records, # 2 Exhibit Ex. B Kieft Depo, # 3 Exhibit Ex. C Navarre Depo, # 4 Exhibit Ex. D Gaboy Depo)(Bay, R. Dale) (Entered: 04/27/2009)
424 RESPONSE to Motion re 328 MOTION in Limine # 10 re: Exclusion of Photographs taken by Kimberly Lopez of G.L., 322 MOTION in Limine # 8 to exclude all video or photographic evidence produced and created by Plaintiff for use at trial, 320 MOTION in Limine # 7 to exclude all Media reports and Information contained therein, 300 MOTION in Limine to Exclude Any Video or Photographic Evidence Produced by Plaintiff for Use at Trial, 310 MOTION in Limine # 2 re: Exclusion of all References to Dr. Lyn McRainey's Psychoeducational Assessment as a "Psychological Evaluation" or "Psychological Assessment" or "Psychological Report", 312 MOTION in Limine # 3 re: Exclusion of Testimony which identifies Third Party Students filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
425 RESPONSE to Motion re 304 MOTION in Limine Regarding Use of the Term "Predator" filed by Kimberly Lopez. (Attachments: # 1 Exhibit State v. Olson, # 2 Exhibit Indictment)(Clemmons, John) (Entered: 04/27/2009)
426 RESPONSE in Opposition re 349 MOTION in Limine Omnibus filed by Genesis Learning Centers. (Attachments: # 1 Exhibit 1A − Catherine Kieft Depo, # 2 Exhibit 1B − Catherine Kieft Depo, # 3 Exhibit 1C − Catherine Kieft Depo, # 4 Exhibit 2 − Dr. Thompson's Report, # 5 Exhibit 3 − Dr. Begtrup's Report)(Simms, James) (Entered: 04/27/2009)
427 RESPONSE in Opposition re 338 MOTION in Limine to Exclude Opinions of Begtrup and Thompson filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 04/27/2009)
428 RESPONSE to Motion re 307 MOTION in Limine #1 re: Exclusion of any Reference to G.L.'s Chicago IEP containing a Bus Aide filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
429 RESPONSE to Motion re 314 MOTION in Limine # 4 re: Exclusion all Testimony regarding the Placement of Bus Monitors Outside of IEP Process filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
430 RESPONSE to Motion re 318 MOTION in Limine # 6 to exclude of any Testimony of Dr. Warren Thompson referencing requirements as they existed under previous IDEA Regulations within his employment and experience with the Metropolitan Government of Nashville and Davidson Co filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
431 RESPONSE to Motion re 330 MOTION in Limine # 11 re: Exclusion of certain Electronic Mail Correspondence between Metro Officials filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
432 RESPONSE to Motion re 336 MOTION in Limine # 14 to exclude all evidence pertaining to Recovery of Expenses for Placement of G.L. at Youth Villages filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
433 RESPONSE to Motion re 341 MOTION in Limine # 15 to exclude all testimony regarding all alleged discussions which occurred during certain IEP meetings for G.L. and K.H. filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)

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04/27/2009
04/27/2009
04/27/2009 04/27/2009
04/27/2009
04/28/2009 04/30/2009 05/07/2009 05/12/2009 05/14/2009 05/14/2009 05/15/2009 05/15/2009 05/18/2009 05/18/2009 05/18/2009 05/18/2009 05/18/2009

434 RESPONSE to Motion re 343 MOTION in Limine # 16 re: Exclusion of any evidence regarding certain Disciplinary Incidents involving K.H. filed by Kimberly Lopez. (Attachments: # 1 Exhibit Overstreet/Landrum Letter, # 2 Exhibit FunctionalBehavioralAssessment, # 3 Exhibit Harris'Affidavit, # 4 Exhibit Harris'Deposition)(Clemmons, John) (Entered: 04/27/2009)
435 RESPONSE in Opposition re 332 MOTION in Limine # 12 re: Exclusion of Office of Civil Rights Complaint and Consent Decree, 345 MOTION in Limine # 17 re: Exclusion of certain documents produced by Defendant in response to Subpoena by Intervening Plaintiff, 347 MOTION in Limine # 18 re: Exclusion of Factual Allegations and Video of Incident in Staehling matter filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
436 RESPONSE to Motion re 334 MOTION in Limine # 13 to exclude certain testimony of Plaintiff's expert Dr. Lawson Bernstein filed by Kimberly Lopez. (Clemmons, John) (Entered: 04/27/2009)
437 RESPONSE in Opposition re 349 MOTION in Limine Omnibus filed by Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Ex. A letter to Robert Homlar from Dr. Bernstein, # 2 Exhibit Ex. B Family Support and Preservation Progress Note)(Bay, R. Dale) (Entered: 04/27/2009)
438 RESPONSE to Motions in Limine 302 , 304 , 307 , 308 , 310 , 312 , 314 , 316 , 318 , 320 , 324 , 330 , 332 , 341 , 343 , 345 &347 , filed by US Attorney/MDTN. (Attachments: # 1 Exhibit 52 − Indictment and Judgment of Kolby Harris, # 2 Appendix D − Index of the United States' Exhibits)(McLaurin, Luke) Modified text on 3/1/2010 (tmw). (Entered: 04/27/2009)
439 SUBPOENA issued to Cheryl J. Woodard and returned executed on 4/28/09 as to Cheryl J. Woodard by Kimberly Lopez (McCune, Malcolm) (Entered: 04/28/2009)
440 ORDER: The Final Pretrial Conference scheduled for Friday, 5/1/09, at 2:00 p.m., is hereby continued, to be rescheduled by subsequent Order. Signed by Senior Judge Robert Echols on 4/30/09. (tmw) (Entered: 04/30/2009)
441 NOTICE by US Attorney/MDTN of Appearance By Amy Berman (Wildasin, Mark) (Entered: 05/07/2009)
442 Proposed Jury Instructions by Kimberly Lopez. (Clemmons, John) (Entered: 05/12/2009)
443 TRIAL BRIEF by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 05/14/2009)
444 TRIAL BRIEF by US Attorney/MDTN. (McLaurin, Luke) (Entered: 05/14/2009)
445 TRIAL BRIEF by Kimberly Lopez. (Attachments: # 1 Exhibit Enright)(Clemmons, John) (Entered: 05/15/2009)
446 TRIAL BRIEF by Genesis Learning Centers. (Simms, James) (Entered: 05/15/2009)
447 SUBPOENA issued to Lyn McRainey, Ph.D. and returned executed on 5/12/2009 as to Lyn McRainey, Ph.D. by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
448 SUBPOENA issued to Detective Joshua Mayo and returned executed on 5/12/2009 as to Detective Joshua Mayo by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
449 SUBPOENA issued to Cheryl Woodard and returned executed on 5/12/2009 as to Cheryl Woodard by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
450 SUBPOENA issued to Keith Phillips and returned executed on 5/12/2009 as to Keith Phillips by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
451 SUBPOENA issued to Marcus Hayes and returned executed on 5/12/2009 as to Marcus Hayes by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)

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05/18/2009 05/18/2009 05/18/2009 05/18/2009 05/21/2009
06/15/2009 06/15/2009 07/07/2009 07/07/2009
07/07/2009 08/11/2009 08/26/2009 08/27/2009 08/27/2009

452 SUBPOENA issued to Linda DePriest and returned executed on 5/12/2009 as to Linda DePriest by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
453 SUBPOENA issued to Sandra Burton and returned executed on 5/12/2009 as to Sandra Burton by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
454 SUBPOENA issued to Gloria Smith and returned executed on 5/12/2009 as to Gloria Smith by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
455 SUBPOENA issued to Susan Sawyer and returned executed on 5/12/2009 as to Susan Sawyer by Kimberly Lopez (Clemmons, John) (Entered: 05/18/2009)
456 ORDER: The jury trial scheduled in this case for 5/26/09, is hereby continued, to be rescheduled by subsequent Order. The Court is inundated with numerous motions. The parties are directed to refrain from filing any further pleadings without prior leave of Court. It is so ORDERED. Signed by Senior Judge Robert Echols on 5/21/09. (tmw) (Entered: 05/21/2009)
457 MOTION for Leave to File Motion for Substitution of Parties by Kimberly Lopez. (Attachments: # 1 Proposed Order)(Clemmons, John) (Entered: 06/15/2009)
458 MOTION to Substitute Party by Kimberly Lopez. (Attachments: # 1 Exhibit Trust, # 2 Exhibit Affidavit of Kimberly Lopez, # 3 Exhibit Affidavit of John Barringer, # 4 Proposed Order)(Clemmons, John) (Entered: 06/15/2009)
459 MEMORANDUM. Signed by Senior Judge Robert Echols on 7/7/09. (dt) (Entered: 07/07/2009)
460 ORDER: For the reasons set forth in the accompanying Memorandum, the Court hereby enters the following rulings: The Motion for Summary Judgment filed by Plaintiff−Intervenor United States of America 164 is hereby DENIED. The Motion for Summary Judgment filed by Defendant Genesis Learning Centers 169 is hereby GRANTED IN PART and DENIED IN PART. The Motions for Summary Judgment filed by Metropolitan Government of Nashville and Davidson County 174 and 178 are hereby GRANTED IN PART and DENIED IN PART. Plaintiff Kimberly Lopez's Motion for Summary Judgment 183 is hereby DENIED. The Motions for Oral Argument on the pending Motions for Summary Judgment 218 and 225 are hereby DENIED. The Motions for Leave to File Excess Pages 204 and 246 are hereby GRANTED. The Motions to Strike 257 , 259 and 266 are hereby DENIED. The Motions for Leave to File Reply Memorandums 273 and 276 are hereby GRANTED. The Motion for Review 279 filed by Plaintiff−Intervenor is hereby DENIED. The Motion to Remand to State Court Plaintiff's Claims Under the Tennessee Governmental Tort Liability Act 280 is hereby DENIED. Signed by Senior Judge Robert Echols on 7/7/09. (dt) (Entered: 07/07/2009)
461 NOTICE of Appearance by Kevin C. Klein and Allison L. Bussell on behalf of Metropolitan Government of Nashville &Davidson County (Klein, Kevin) Modified text on 7/9/2009 (tmw). (Entered: 07/07/2009)
462 NOTICE by Kimberly Lopez of Case Management Conference (Clemmons, John) (Entered: 08/11/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 8/26/2009; ORDER to enter. (jwc) (Entered: 08/27/2009)
463 MOTION for Protective Order (Agreed Protective Order) by Genesis Learning Centers. (Simms, James) (Entered: 08/27/2009)
464 ORDER: Counsel for the parties called the Court on 8/26/09. Pltf's 457 MOTION for Leave to File Motion is GRANTED. Pltf's 458 MOTION to Substitute Party is GRANTED. Kimberly Lopez, as guardian, next friend and parent of Gilberto Lopez, a minor, terminated. Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust added. The parties subsequently filed a proposed protective order, which the Court deems to be a joint motion for entry of the protective order, and, as such, is GRANTED, and the proposed protective order 463 is contemporaneously entered. Signed by Magistrate Judge Juliet E. Griffin on 8/27/09. (tmw) (Entered: 08/27/2009)

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08/27/2009 10/01/2009 10/09/2009 10/09/2009
10/19/2009 10/30/2009 11/02/2009 11/13/2009 11/23/2009 11/23/2009

465 AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Juliet E. Griffin on 8/27/09. (tmw) (Entered: 08/27/2009)
466 ORDER: Telephone Conference set for 10/8/2009, at 3:00 PM, for the purpose of scheduling a new trial date and a final pretrial conference date. Counsel are directed to call 615−695−2891 at the scheduled time to participate in the telephone conference. It is so ORDERED. Signed by Senior Judge Robert Echols on 10/1/09. (tmw) (Entered: 10/02/2009)
467 Minute Entry for proceedings held before Senior Judge Robert Echols: Telephone Conference on Status of Case and to Set Trial Date and Pretrial Conference Date held on 10/8/2009. Order to enter. (Court Reporter Dorothy Stiles.) (tmw) (Entered: 10/09/2009)
468 ORDER: Telephone Conference was held on 10/8/09, for the purpose of setting a trial date. During the conference, the Court established the following deadlines: Plaintiff's counsel shall provide Defendants' counsel with copies of Dr. Freeman's records from Vanderbilt Hospital relating to Plaintiff by 10/15/2009. Deadline for taking the deposition of Dr. Freeman is 10/25/2009. Deadline for identifying the individuals from Youth Villages to be deposed is 10/25/2009. Deadline for Plaintiff's counsel to determine whether to use Dr. Elkins as an expert and to submit his expert report is 10/15/2009. Counsel for Plaintiff is directed to check the availability of Dr. Elkins for deposition, which shall be taken by 10/23/2009. Defendants' expert report is due 11/20/2009. The deadline for taking the deposition of Defendants' expert is 12/2/2009. Pretrial motions and motions in limine are due 12/7/2009. Deadline for Plaintiff's settlement demand is 10/16/2009. Defendant shall respond by 10/23/2009. Afterwards, the parties may notify the Court if they wish to participate in a judicial settlement conference. Final Pretrial Conference is scheduled for 2/1/2010, at 1:00 p.m. A Jury Trial is scheduled for 3/2/2010, at 9:00 a.m. Signed by Senior Judge Robert Echols on 10/9/09. (dt) ***AMENDED on 12/22/09 − See DE #482*** (km). (Entered: 10/09/2009)
469 ORDER: Telephone Conference set for 10/30/2009, at 1:00 PM, central time, to be initiated by counsel for deft Genesis. Signed by Magistrate Judge Juliet E. Griffin on 10/19/09. (tmw) (Entered: 10/19/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 10/30/2009; ORDER to enter. (jwc) (Entered: 11/02/2009)
470 ORDER: Pursuant to the order entered October 19, 2009 469 , counsel for the parties called the Court on October 30, 2009. A further telephone conference will be scheduled with counsel for the parties and the Magistrate Judge after any scheduled settlement conference/mediation. Signed by Magistrate Judge Juliet E. Griffin on 11/2/09. (tmw) (Entered: 11/02/2009)
471 ORDER: Telephone Conference set for 11/23/2009, at 11:30 AM before Magistrate Judge Juliet E. Griffin, to be initiated by counsel for Deft Genesis. Signed by Magistrate Judge Juliet E. Griffin on 11/13/09. (tmw) (Entered: 11/13/2009)
Minute Entry for proceedings held before Magistrate Judge Juliet E. Griffin: Telephone Conference held on 11/23/2009; ORDER to enter. (jwc) (Entered: 11/23/2009)
472 ORDER: Pursuant to the order entered November 13, 2009 (Docket Entry No. 471), counsel for the parties called the Court on November 23, 2009. The parties have scheduled private mediation with Howard Vogel on December 2, 2009. The plaintiff is now in Laurel Heights, a residential program in Atlanta, and, if the parties are not able to reach a settlement, the plaintiff will need to take a deposition or depositions of employees at Laurel Heights. Counsel agreed that they will be able to schedule those depositions. All depositions (three in number) at Youth Village in Memphis were taken on November 16, 2009. As a result of the Youth Village depositions, counsel for Metro advised that he intends to move to amend his answer to allege the comparative fault of Youth Villages. Although plaintiff's counsel represented that he will not seek to add Youth Villages as a defendant, the plaintiff will oppose the motion to amend. Plaintiff's counsel advised that there is

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one additional expert for whom expert disclosures have not yet been made, after which his deposition will be scheduled if requested by the defendants. Plaintiff's counsel have not yet determined if the deposition of the MTMHI psychiatrist will be taken for proof or whether he will testify in person at trial. Counsel for the intervening plaintiff represented that the issue of supplementation, raised during the October 30, 2009, conference call and addressed in the order entered November 2, 2009 (Docket Entry No. 470), has been resolved. Counsel did not believe that it was necessary to schedule any future conference calls, but, if any discovery or scheduling issues arise, they shall schedule a telephone conference call with the undersigned. It is so ORDERED. Signed by Magistrate Judge Juliet E. Griffin on 11/23/09. (af) (Entered: 11/24/2009)

12/01/2009

473 MOTION in Limine to Exclude Testimony of Karl Kirkland, Ph.D. by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Attachments: # 1 Exhibit A. Elkins Report, # 2 Exhibit Pl.'s Disclosure Correspondence, # 3 Exhibit Dr. Elkins Dep. excerpts, # 4 Exhibit Def.'s Disclosure and Kirkland Report)(Clemmons, John) (Entered: 12/01/2009)

12/01/2009

474 MEMORANDUM in Support of 473 MOTION in Limine to Exclude Testimony of Karl Kirkland, Ph.D. filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 12/01/2009)

12/02/2009

475 Joint MOTION to Amend 468 Scheduling Order, by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) Modified text on 12/8/2009 (tmw). (Entered: 12/02/2009)

12/11/2009

476 MOTION for Leave to File Document Under Seal by Genesis Learning Centers. (Simms, James) (Entered: 12/11/2009)

12/11/2009

477 Sealed Document Response in Opposition to Plaintiff's Motion in Limine to Exclude Testimony of Karl Kirkland, Ph.D filed by Genesis Learning Centers. (Attachments: # 1 Exhibit 1 − Dr. Elkins' Rule 26 Report, # 2 Exhibit 2 − Dr. Elkins Deposition, # 3 Exhibit 3 − Dr. Kirkland's Rule 26 Disclosure)(Simms, James) (Entered: 12/11/2009)

12/11/2009

478 MOTION for Leave to File Document Under Seal by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 12/11/2009)

12/11/2009

479 Sealed Document (Response in Opposition to Motion in Limine to Exclude Expert Testimony of Karl Kirkland, Ph.D.) filed by Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 12/11/2009)

12/18/2009

480 MOTION for Leave to File Document Under Seal by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 12/18/2009)

12/18/2009

481 Sealed Document Reply to Defendants' Response to Plaintiff's Motion to Exclude Expert Testimony of Karl Kirkland, Ph.D. filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Attachments: # 1 Supplement AZ Holding v. Frederick)(Clemmons, John) (Entered: 12/18/2009)

12/22/2009

482 ORDER: 475 Motion to Amend Scheduling Order is granted. Deadline for filing motions in limine is extended to January 11, 2010. Responses are due on January 19, 2010. The deadline for completing mediation is December 31,2009. 3. The deadline for Plaintiff's deposition of Dr. Kirkland is December 31, 2009, without waiver of any objection to his testimony. Signed by Senior Judge Robert Echols on 12/22/09. (km) (Entered: 12/22/2009)

01/06/2010

483 ORDER granting 476 and 478 Motions for Leave to File Documents Under Seal. The Clerk is directed to seal Docket Entry Nos. 477 and 479 . It is so ORDERED. Signed by Senior Judge Robert Echols on 1/6/10. (tmw) (Entered: 01/06/2010)

01/12/2010

484 ORDER granting 480 Motion to File Documents Under Seal. The Clerk is directed to seal DE No. 481 . Signed by Senior Judge Robert Echols on 1/12/10. (tmw)

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(Entered: 01/12/2010)

01/15/2010

485 ORDER: Jury Trial set for 3/2/2010 09:00 AM before Senior Judge Robert Echols. Final Pretrial Conference set for 2/1/2010 01:00 PM before Senior Judge Robert Echols. Joint Proposed Pretrial Order due by 1/27/2010. Signed by Senior Judge Robert Echols on 1/15/10. (km) (Entered: 01/15/2010)

01/20/2010

486 NOTICE by Metropolitan Government of Nashville &Davidson County Of Tentative Compromise and Settlement (Mink, Thomas) (Entered: 01/20/2010)

01/26/2010

487 MOTION To Adopt and Incorporate by Reference Motions in Limine (DE Nos. 308 , 310 , 312 , 320 , 322 , 328 , 336 , 341 , and 343 ) Filed by Co−Defendant Metropolitan Government of Nashville and Davidson County, by Genesis Learning Centers. (Simms, James) Modified text on 2/8/2010 (tmw). (Entered: 01/26/2010)

01/27/2010

488 NOTICE of Filing of Consent Decree, by Kolby Harris, Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Genesis Learning Centers, US Attorney/MDTN, Metropolitan Government of Nashville &Davidson County, (Charles, James) Modified text on 2/8/2010 (tmw). (Entered: 01/27/2010)

01/27/2010

489 Witness List by Genesis Learning Centers. (Simms, James) (Entered: 01/27/2010)

01/27/2010

490 Exhibit List by Genesis Learning Centers.. (Simms, James) (Entered: 01/27/2010)

01/27/2010

491 Witness List by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 01/27/2010)

01/27/2010

492 Exhibit List by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust.. (Clemmons, John) (Entered: 01/27/2010)

01/27/2010

493 STIPULATION by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Attachments: # 1 Supplement BCBS Billing Amounts, # 2 Supplement Psychiatric Care Amounts)(Clemmons, John) (Entered: 01/27/2010)

01/27/2010

494 Proposed Pretrial Order by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Genesis Learning Centers. (Clemmons, John) (Entered: 01/27/2010)

01/27/2010

495 Proposed Jury Verdict Form by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Genesis Learning Centers. (Clemmons, John) (Entered: 01/27/2010)

01/27/2010

496 Proposed Jury Instructions by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Genesis Learning Centers. (Simms, James) (Entered: 01/27/2010)

01/28/2010

497 Joint MOTION for Hearing on Settlement Between Plaintiff and Defendant Metropolitant Gov't by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 01/28/2010)

01/28/2010

498 ORDER granting 487 Motion to Adopt and Incorporate by Reference Motions In Limine (Nos. 308, 310, 312, 320, 322, 328, 336, 341, 343). Signed by Senior Judge Robert Echols on 1/28/2010. (dt) (Entered: 01/29/2010)

01/29/2010

499 MOTION Petition for An Order Approving Minor Settlement by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Blackburn, William) (Entered: 01/29/2010)

01/29/2010

500 Proposed Pretrial Order re 499 Motion/Petition for An Order Approving Minor Settlement, by Gilberto Lopez, by and through the Cumberland Trust &Investment

Case: 3:07-cv-00799 As of: 01/30/2014 02:20 PM CST 42 of 52

Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Blackburn, William) Modified text on 2/9(tmw). (Entered: 01/29/2010)

01/29/2010

501 ORDER granting 497 Joint Motion for Hearing. A hearing on the minor settlement is hereby scheduled for Monday, 2/1/10, at 1:00 p.m. in conjunction with the final pretrial conference. It is so ORDERED. Signed by Senior Judge Robert Echols on 1/29/10. (tmw) (Entered: 02/01/2010)

02/01/2010

502 MOTION by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit Turst Instrument and Description of Cumberland Trust, # 2 Exhibit Release and Settlement Agreement, # 3 Exhibit Affidavit, # 4 Exhibit Petition)(Bay, R. Dale) (Additional attachment(s) added on 2/9/2010: # 1 Exhibit A−The Gilberto Kelly Lopez Irrevocable Trust, # 2 Exhibit B−Release and Settlement Agreement, # 3 Exhibit A−Qualified Affidavit of Transferor of Investment Services Trust, # 4 Exhibit B−Petition for an Order Approving Minor Settlement) (af). (Entered: 02/01/2010)

02/01/2010

503 Proposed Pretrial Order by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Metropolitan Government of Nashville &Davidson County. (Bay, R. Dale) (Entered: 02/01/2010)

02/01/2010

504 Proposed Pretrial Order by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Metropolitan Government of Nashville &Davidson County. (Attachments: # 1 Exhibit A −Expenses)(Bay, R. Dale) (Entered: 02/01/2010)

02/02/2010

505 NOTICE of Filing by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust Document containing Plaintiff Trust's expenses for purposes of pending settlement (Attachments: # 1 Exhibit List of Pl.'s expenses)(Clemmons, John) (Entered: 02/02/2010)

02/02/2010

506 Minute Entry for proceedings held before Senior Judge Robert Echols: Final Pretrial Conference held on 2/1/2010. (Court Reporter Dorothy Stiles.) (tmw) (Entered: 02/02/2010)

02/02/2010

507 WITNESS/EXHIBIT LIST prepared by Deputy Clerk re: 506 Final Pretrial Conference.(tmw) (Entered: 02/02/2010)

02/03/2010

508 NOTICE of Appearance by Malcolm L. McCune on behalf of Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust (McCune, Malcolm) (Entered: 02/03/2010)

02/04/2010

509 ORDER: The Final Pretrial Conference was held in this case on 2/1/10. In accordance with the discussions at the Pretrial Conference, the Court hereby confirms the following rulings: (1) By the close of business on 2/5/10, both parties shall file Amended Proposed Exhibit Lists; (2) By the close of business on 2/10/10, the parties shall file any obj to their opponent's proposed Witness and Exhibit Lists; (3) To the extent possible, the parties shall seek to stipulate as to the authenticity and admissibility of exhibits; (4) At least 5 business days prior to trial, the parties shall file a short brief (not to exceed 8 pages) on the issue of recoverable damages; (5) Genesis Motion for Bifurcation of Trial 363 is hereby GRANTED; (6) Without objection, the following Motions in Limine which were filed by the Metropolitan Government and adopted by Genesis are hereby GRANTED: 300 , 310 , 312 , 320 , 322 and 328 ; (7) Pltf's Motion in Limine 338 is hereby DENIED; (8) Pltf's Omnibus Motion in Limine 349 is hereby GRANTED IN PART and DENIED IN PART; (9) Pltf's Motion in Limine 473 is hereby DENIED; (10) Genesis' Motion in Limine 298 is hereby DENIED; (11) Genesis' Motion in Limine 302 is hereby GRANTED IN PART and DENIED IN PART; (12) The Court hereby RESERVES RULING on Genesis' Motion in Limine 304 ; (13) The Court also hereby RESERVES RULING on Genesis' Motion in Limine 308 ; (14) Genesis' Motion in Limine 336 is hereby DENIED AS MOOT; (15) The Court hereby RESERVES RULING on Genesis' Motion in Limine 341 ; (16) Genesis' Motion in Limine 343

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is hereby DENIED; and (17) The jury trial in this case will commence at 9:00 a.m. on 3/2/10, as previously scheduled, and is expected to last 6 days. It is so ORDERED. Signed by Senior Judge Robert Echols on 2/4/10. (tmw) (Entered: 02/04/2010)

02/05/2010

510 Witness List Plaintiff's Amended by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 02/05/2010)

02/05/2010

511 Exhibit List Plaintiff's Amended by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, US Attorney/MDTN.. (Clemmons, John) (Entered: 02/05/2010)

02/05/2010

512 Exhibit List Revised by Genesis Learning Centers.. (Simms, James) (Entered: 02/05/2010)

02/08/2010

513 Proposed Pretrial Order Amended Order Approving Proposed Settlement by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 02/08/2010)

02/08/2010

514 NOTICE by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust Deposition Designations (Clemmons, John) (Entered: 02/08/2010)

02/08/2010

515 NOTICE of Filing by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust Plaintiff's Supplemental Deposition Designations (Clemmons, John) (Entered: 02/08/2010)

02/09/2010

516 CONSENT DECREE. Signed by Senior Judge Robert Echols on 2/9/10. (tmw) (Entered: 02/09/2010)

02/09/2010

517 ORDER Approving Minor Settlement. This matter having been approved by the Court, this case is dismissed with prejudice as between Cumberland Trust and Investment Company as next friend and Trustee of Gilberto Kelley Lopez as against the Metropolitan Government of Nashville and Davidson County, Tennessee. Signed by Senior Judge Robert Echols on 2/9/10. (Attachments: # 1 Exhibit 1 − The Gilberto Kelly Lopez Irrevocable Trust, # 2 Exhibit 2 − Cumberland Trust and Investment Company Fee Schedule) (tmw) (Entered: 02/09/2010)

02/10/2010

518 OBJECTIONS to Defendant Genesis' Revised Exhibit List (Doc. 512). (Clemmons, John) (Entered: 02/10/2010)

02/10/2010

519 NOTICE by Genesis Learning Centers of Objection to Plaintiff's Exhibit List (Simms, James) (Entered: 02/10/2010)

02/11/2010

520 MOTION to Amend/Correct 511 Exhibit List by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (McCune, Malcolm) (Entered: 02/11/2010)

02/12/2010

521 Exhibit List Second Amended Exhibit List by Genesis Learning Centers.. (Simms, James) (Entered: 02/12/2010)

02/15/2010

522 NOTICE by Genesis Learning Centers Deposition Designations (Simms, James) (Entered: 02/15/2010)

02/15/2010

523 MOTION to Amend/Correct 521 Exhibit List by Genesis Learning Centers. (Simms, James) (Entered: 02/15/2010)

02/23/2010

524 TRIAL BRIEF on Damages by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 02/23/2010)

02/23/2010

525 ORDER granting Pltf's 520 Motion to Amend Exhibit List; granting Deft Genesis Learning Centers' 523 Motion to Amend Exhibit List. Signed by Senior Judge

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02/23/2010
02/23/2010 02/23/2010 02/23/2010 02/23/2010 02/24/2010 02/24/2010 02/24/2010
02/24/2010 02/25/2010 02/26/2010 02/26/2010

Robert Echols on 2/23/10. (tmw) (Entered: 02/23/2010)
526 ORDER: By Consent Decree entered 2/9/10, the Title IX claim raised by the United States against the Metropolitan Government of Nashville and Davidson County ("Metro") 516 has been resolved and settled. By Order entered 2/9/10, the minor settlement resolving the matters in controversy between Plaintiff and Metro was approved 517 . The only remaining parties are Plaintiff Cumberland Trust and Investment Company as next friend and Trustee of Gilberto Kelley Lopez and Defendant Genesis Learning Centers. Accordingly, the following motions in limine filed by Metro are hereby DENIED as moot: Docket Entry Nos. 314 , 316 , 318 , 324 , 330 , 332 , 334 , 345 , and 347 . The Motion in Limine 326 filed by the United States is likewise DENIED as moot. It is so ORDERED. Signed by Senior Judge Robert Echols on 2/23/10. (tmw) (Entered: 02/23/2010)
527 TRIAL BRIEF on Damages by Genesis Learning Centers. (Simms, James) (Entered: 02/23/2010)
528 OBJECTIONS to Plaintiff's Deposition Designations filed by Genesis Learning Centers re 515 Notice (Other), 514 Notice (Other). (Simms, James) (Entered: 02/23/2010)
529 OBJECTIONS to Defendant's Deposition Designations and Plaintiff's Counter Designations filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust re 522 Notice (Other). (Clemmons, John) (Entered: 02/23/2010)
530 MOTION to Amend/Correct Witness List and Exhibit List by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Attachments: # 1 Supplement Plaintiff's Third Amended Witness List, # 2 Supplement Plaintiff's Third Amended Exhibit List)(Clemmons, John) (Entered: 02/23/2010)
531 OBJECTIONS To Defendant's Exhibit and Witness Lists filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust re 521 Exhibit List, 489 Witness List, 523 Motion to Amend/Correct. (Clemmons, John) (Entered: 02/24/2010)
532 NOTICE of Filing by Genesis Learning Centers re 528 Objections (Attachments: # 1 Exhibit A − Portions of Depositions)(Simms, James) (Entered: 02/24/2010)
533 OBJECTIONS to Defendant's Deposition Designations and Plaintiff's Counter Designations Amended filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust re 522 Notice (Other). (Attachments: # 1 Exhibit Roberta Lara Depositon Excerpts, # 2 Exhibit Catherine Kieft Deposition Excerpts, # 3 Exhibit Veronica Liggins (VOL. I) Deposition Excerpts, # 4 Exhibit Veronica Liggins (VOL. II) Deposition Excerpts, # 5 Exhibit Narcisco Gaboy (VOL. I) Deposition Excerpts, # 6 Exhibit Narcisco Gaboy (VOL. II) Deposition Excerpts)(Clemmons, John) (Entered: 02/24/2010)
534 NOTICE of Proposed Order re 509 Order, Order to Bifurcate Trial. (Simms, James) Modified text on 2/26/2010 (tmw). (Entered: 02/24/2010)
535 Exhibit List Third Amended by Genesis Learning Centers.. (Rose, Benjamin) (Entered: 02/25/2010)
536 BRIEF filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust re 530 Motion to Amend/Correct. (Clemmons, John) Modified text on 3/3/2010 (tmw). (Entered: 02/26/2010)
537 NOTICE by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust of Physically Filing Documents (Attachments: # 1 Supplement Plaintiff's Amended Objections to Defendant's Exhibit and Witness Lists)(Clemmons, John) (Entered: 02/26/2010)

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02/26/2010 02/26/2010
02/26/2010
02/27/2010 03/01/2010
03/01/2010 03/01/2010 03/02/2010 03/03/2010 03/03/2010 03/03/2010 03/05/2010 03/07/2010
03/11/2010 03/11/2010 03/11/2010 03/11/2010

538 OBJECTIONS to Plaintiff's Third Amended Exhibit List filed by Genesis Learning Centers re 530 Motion to Amend/Correct. (Attachments: # 1 Exhibits)(Simms, James) Modified text on 3/3/2010 (tmw). (Entered: 02/26/2010)
539 ORDER: Accordingly, the Court hereby orders that the trial of this cause shall be bifurcated and held in two phases with the second phase, if necessary, consisting of a separate hearing to determine the amount of punitive damages, if any. Only at the second phase, shall the parties be permitted to present proof to the jury to determine the amount of punitive damages, if any, consistent with the relevant factors in Hodges v. S.C. Toof, 833 S.W.2d 896 (Tenn. 1992). It is so ORDERED. Signed by Senior Judge Robert Echols on 2/26/10. (tmw) (Entered: 02/26/2010)
540 RESPONSE filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust re 538 Objections filed by Genesis Learning Centers. (Clemmons, John) (Entered: 02/26/2010)
550 JOINT PRETRIAL ORDER. Signed by Senior Judge Robert Echols on 2/27/10. (tmw) (Entered: 03/16/2010)
541 ORDER granting Plaintiff's 530 Motion to Amend Witness List and Exhibit List. The Clerk is directed to give "Plaintiff's Third Amended Witness List" and "Plaintiff's Third Amended Exhibit List" separate docket entry numbers. It is so ORDERED. Signed by Senior Judge Robert Echols on 3/1/10. (tmw) (Entered: 03/01/2010)
542 Plaintiff's Third Amended Witness List, per Order 541 . (tmw) (Entered: 03/01/2010)
543 Plaintiff's Third Amended Exhibit List, per Order 541 . (tmw) (Entered: 03/01/2010)
544 STIPULATION by Genesis Learning Centers. (Simms, James) (Entered: 03/02/2010)
545 Sealed Document. Clerk's Resume for Jury Trial, Day 1, containing jurors names. (tmw) (Entered: 03/03/2010)
546 Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial, Day 1, held on 3/2/2010 (redacted version − names of jurors removed). (Court Reporter Dorothy Stiles.) (tmw) (Entered: 03/03/2010)
547 Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial, Day 2, held on 3/3/2010. (Court Reporter Dorothy Stiles.) (tmw) (Entered: 03/04/2010)
548 Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial, Day 3, held on 3/4/2010. (Court Reporter Dorothy Stiles.) (tmw) (Entered: 03/05/2010)
549 STIPULATION re: David Elkins, PhD by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust, Genesis Learning Centers. (Clemmons, John) (Entered: 03/07/2010)
Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial (Day 4) held on 3/05/2010. (Court Reporter Dorothy Stiles.) (vk) (Entered: 03/11/2010)
Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial (Day 5) held on 3/08/2010. (Court Reporter Dorothy Stiles.) (vk) (Entered: 03/11/2010)
Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial (Day 6) held on 3/09/2010. (Court Reporter Dorothy Stiles.) (vk) (Entered: 03/11/2010)
Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial (Day 7) held on 3/10/2010. (Court Reporter Dorothy Stiles.) (vk) (Entered:

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03/11/2010)

03/11/2010

Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial (Day 8) held on 3/11/2010. (Court Reporter Dorothy Stiles.) (vk) (Entered: 03/11/2010)

03/16/2010

Minute Entry for proceedings held before Senior Judge Robert Echols: Jury Trial completed on 3/12/2010. Jury returned a verdict in favor of Defendant. Judgment to enter. (Court Reporter Dorothy Stiles and Charlotte Sloan.) (vk) (Entered: 03/16/2010)

03/17/2010

551 WITNESS/EXHIBIT LIST prepared by Deputy Clerk re: Jury Trial held 3/2/10 − 3/12/10.(tmw) (Entered: 03/17/2010)

03/17/2010

552 Sealed Document. Jury Verdict Form reflecting Jury Foreperson's name. (tmw) (Entered: 03/17/2010)

03/17/2010

553 JURY VERDICT FORM (redacted). (tmw) (Entered: 03/17/2010)

03/17/2010

554 JUDGMENT IN A CIVIL CASE: IN ACCORDANCE WITH THE VERDICT OF THE JURY, JUDGMENT IS HEREBY ENTERED IN FAVOR OF DEFENDANT GENESIS LEARNING CENTERS. (tmw) (Entered: 03/18/2010)

03/23/2010

555 Transcript filed for date of 3/2/10, before Judge Robert L. Echols (Volume 1). Court Reporter/Transcriber: Dorothy Stiles, Telephone number: (615) 330−1764, E−Mail Address: dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/2/2010. Redaction Request due 4/16/2010. Redacted Transcript Deadline set for 4/26/2010. Release of Transcript Restriction set for 6/24/2010. (tmw) Modified text on 3/29/2010 (tmw). (Entered: 03/23/2010)

03/25/2010

556 MOTION of Defendant Genesis Learning Centers for Costs by Genesis Learning Centers. (Simms, James) Modified text on 4/8/2010 (tmw). (Entered: 03/25/2010)

03/25/2010

557 MEMORANDUM in Support of 556 MOTION of Defendant Genesis Learning Centers for Costs filed by Genesis Learning Centers. (Simms, James) Modified text on 4/8/2010 (tmw). (Entered: 03/25/2010)

03/25/2010

558 AFFIDAVIT re 557 Memorandum in Support by Genesis Learning Centers. (Attachments: # 1 Exhibit A− Expenses)(Simms, James) (Entered: 03/25/2010)

03/26/2010

559 MOTION for Attorney Fees by Genesis Learning Centers. (Simms, James) (Entered: 03/26/2010)

03/26/2010

560 MEMORANDUM in Support of 559 MOTION for Attorney Fees filed by Genesis Learning Centers. (Simms, James) (Entered: 03/26/2010)

03/26/2010

561 AFFIDAVIT re 560 Memorandum in Support by Genesis Learning Centers. (Attachments: # 1 Exhibit A−Attorneys' Fees Report)(Simms, James) (Entered: 03/26/2010)

03/29/2010

562 Transcript filed for date of 3/3/10, before Judge Robert L. Echols (Volume 2). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/5/2010. Redaction Request due 4/19/2010. Redacted Transcript Deadline set for 4/29/2010. Release of Transcript Restriction set for 6/28/2010. (tmw) (Entered: 03/29/2010)

03/31/2010

563 Transcript filed for date of 3/4/10, before Judge Robert L. Echols (Volume 3). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/7/2010. Redaction Request due 4/21/2010. Redacted Transcript Deadline set for 5/3/2010. Release of

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Transcript Restriction set for 6/29/2010. (tmw) (Entered: 03/31/2010)

04/06/2010 04/06/2010 04/07/2010 04/07/2010

564 Transcript filed for date of 3/5/10, before Judge Robert L. Echols (Volume 4). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/13/2010. Redaction Request due 4/27/2010. Redacted Transcript Deadline set for 5/7/2010. Release of Transcript Restriction set for 7/6/2010. (tmw) (Entered: 04/06/2010)
565 Transcript filed for date of 3/8/10, before Judge Robert L. Echols (Volume 5). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/13/2010. Redaction Request due 4/27/2010. Redacted Transcript Deadline set for 5/7/2010. Release of Transcript Restriction set for 7/6/2010. (tmw) (Entered: 04/06/2010)
566 RESPONSE in Opposition re 559 MOTION for Attorney Fees filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/07/2010)
567 MEMORANDUM in Support of 566 Response in Opposition to Motion filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/07/2010)

04/07/2010

568 RESPONSE in Opposition re 556 MOTION of Defendant Genesis Learning Centers for Costs filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) Modified text on 4/8/2010 (tmw). (Entered: 04/07/2010)

04/07/2010

569 MEMORANDUM in Support of 568 Response in Opposition to Motion, filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/07/2010)

04/08/2010
04/09/2010 04/09/2010 04/09/2010

570 Transcript filed for date of 3/9/10, before Judge Robert L. Echols (Volume 6). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/15/2010. Redaction Request due 4/29/2010. Redacted Transcript Deadline set for 5/10/2010. Release of Transcript Restriction set for 7/7/2010. (tmw) (Entered: 04/08/2010)
571 MOTION for Leave to to Exceed Page Limitation in Brief filed in Support of Plaintiff's Motion for New Trial by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/09/2010)
572 MOTION for New Trial by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/09/2010)
573 MEMORANDUM in Support of 572 MOTION for New Trial filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Attachments: # 1 Attachment Cecil Corley v. GM, # 2 Attachment Central on Line Date v. Filenet, # 3 Attachment Hawthorne v. Friedman, # 4 Attachment Minor v. Ford Glass &Metal, # 5 Attachment Peer v. Porterfield, # 6 Attachment S.G. v. Rockford Bd. of Educ., # 7 Attachment Snethen v. Bd. of Pub. Educ., # 8 Attachment Staehling v. Metro, # 9 Attachment Timmons v. Metro, # 10 Attachment Veazey v.

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Elmwood)(Clemmons, John) (Entered: 04/09/2010)

04/09/2010

574 MOTION for Hearing re 572 MOTION for New Trial by Oral Argument by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 04/09/2010)

04/13/2010

575 Transcript filed for date of 3/10/10, before Judge Robert L. Echols (Volume 7). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/20/2010. Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (tmw) (Entered: 04/13/2010)

04/13/2010

576 Transcript filed for date of 3/11/10, before Judge Robert L. Echols (Volume 8). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/20/2010. Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010. (tmw) (Entered: 04/14/2010)

04/14/2010

577 Transcript filed for date of 3/12/10, before Judge Robert L. Echols (Volume 9). Court Reporter/Transcriber: Dorothy Stiles, 615−330−1764, dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 4/21/2010. Redaction Request due 5/5/2010. Redacted Transcript Deadline set for 5/17/2010. Release of Transcript Restriction set for 7/13/2010. (tmw) (Entered: 04/14/2010)

04/14/2010

578 MOTION for Leave to to File Reply in Support of Motion for Costs re 556 MOTION Costs Motion of Defendant Genesis Learning Centers for Costs by Genesis Learning Centers. (Simms, James) (Entered: 04/14/2010)

04/14/2010

579 REPLY to Response to Motion re 556 MOTION Costs Motion of Defendant Genesis Learning Centers for Costs filed by Genesis Learning Centers. (Simms, James) (Entered: 04/14/2010)

04/14/2010

580 MOTION for Leave to to File Reply in Support of Motion for Attorneys' Fees re 559 MOTION for Attorney Fees by Genesis Learning Centers. (Simms, James) (Entered: 04/14/2010)

04/14/2010

581 REPLY to Response to Motion re 559 MOTION for Attorney Fees filed by Genesis Learning Centers. (Simms, James) (Entered: 04/14/2010)

04/19/2010

582 ORDER granting Pltf's 571 Motion for Leave to Exceed Page Limitation for Memorandum in Support of Motion for New Trial. Pltf's Memorandum 573 will be considered. It is so ORDERED. Signed by Senior Judge Robert Echols on 4/19/10. (tmw) (Entered: 04/19/2010)

04/20/2010

583 ORDER: Pending before the Court are Defendant's (1) Motion for Leave to File Reply in Support of Motion for Costs 578 and (2) Motion for Leave to File Reply in Support of Motion for Attorneys' Fees 580 . Defendant's Replies are filed as Docket Entry Nos. 579 and 581 , respectively, and each are within the five page limit. The Motions are hereby GRANTED. Defendant's Replies will be considered. It is so ORDERED. Signed by Senior Judge Robert Echols on 4/20/10. (tmw) (Entered: 04/20/2010)

04/23/2010

584 RESPONSE in Opposition re 574 MOTION for Hearing re 572 MOTION for New Trial by Oral Argument filed by Genesis Learning Centers. (Simms, James) (Entered: 04/23/2010)

04/23/2010

585 MOTION for Leave to File Excess Pages Response in Opposition to Plaintiff's Motion for New Trial by Genesis Learning Centers. (Simms, James) (Entered:

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04/23/2010 06/03/2010 06/03/2010
06/09/2010 06/09/2010 06/16/2010 06/18/2010 06/21/2010 06/21/2010 06/24/2010
06/30/2010

04/23/2010)
586 RESPONSE in Opposition re 572 MOTION for New Trial filed by Genesis Learning Centers. (Attachments: # 1 Attachment Polmatier v. Russ, # 2 Attachment Re: Mental Deficiency, # 3 Attachment Battery)(Simms, James) (Entered: 04/23/2010)
587 MEMORANDUM. An appropriate Order will be entered. Signed by Senior Judge Robert Echols on 6/3/10. (tmw) (Entered: 06/03/2010)
588 ORDER: For the reasons set forth in the Memorandum issued contemporaneously herewith, the Court hereby enters the following rulings: (1) Genesis' Motion for Costs 556 is hereby DENIED, but said denial is WITHOUT PREJUDICE to Genesis filing a bill of costs which complies with Local Rule 54.01 within twenty days of entry of this Order; (2) Genesis' Motion for Attorneys' Fees 559 is hereby DENIED; (3) Plaintiff's Motion for New Trial 573 is hereby DENIED; and (4) Plaintiff's Motion for Oral Argument 574 is hereby DENIED. It is so ORDERED. Signed by Senior Judge Robert Echols on 6/3/10. (tmw) (Entered: 06/03/2010)
589 BILL OF COSTS by Genesis Learning Centers. (Simms, James) (Entered: 06/09/2010)
590 AFFIDAVIT re 589 Bill of Costs Affidavit of Counsel in Support of Itemized Bill of Costs by Genesis Learning Centers. (Attachments: # 1 Attachment Printout of expenses)(Simms, James) (Entered: 06/09/2010)
591 NOTICE OF APPEAL as to 460 Order on Motion for Summary Judgment, 588 Order on Motion for Miscellaneous Relief, Order on Motion for Attorney Fees, Order on Motion for New Trial, Order on Motion for Hearing by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) Modified text on 6/24/2010 (ab). (Entered: 06/16/2010)
592 USCA Appeal Fees received $ 455 receipt number 34675−12621 re 591 Notice of Appeal,, filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (ab) (Entered: 06/21/2010)
593 RESPONSE in Opposition to Defendant's Bill of Costs. (Clemmons, John) (Entered: 06/21/2010)
594 MEMORANDUM in Support of 593 Response (Non−Motion or 2255 Petition) filed by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Clemmons, John) (Entered: 06/21/2010)
595 NOTICE of Taxation of Costs: Pending are Genesis Learning Centers' Bill of Costs and supporting Affidavit (Docket Entries 589 &590 ). Plaintiff has filed a Response in Opposition and Memorandum in Support (Docket Entries 593 &594 ). The Clerk has reviewed the Bill of Costs and related filings and finds Plaintiff has raised meritorious objections to the $29,342.08 in costs sought by Defendant and the costs will be reduced as stated below. Pursuant to Local Rule 54.01(a), the Clerk, through the entry of this Notice of Taxation of Costs, provides notice that the taxation of costs against Plaintiff in favor of Defendant Genesis Learning Centers will be entered on Friday, July 2, 2010, in the amount of $10,263.06 as described in this Notice. The parties shall have seven days from that date to file exceptions with the Clerk. The Clerk will thereafter consider any exceptions filed and issue a Final Taxation of Costs. The parties may then accept the Clerk's determination or within seven days following the Final Taxation file a motion for review of the Clerk's decision before the Court. Keith Throckmorton, Clerk of Court. (tmw) (Entered: 06/24/2010)
596 NOTICE OF CROSS APPEAL as to 588 Order on Motion for Miscellaneous Relief, Order on Motion for Attorney Fees, Order on Motion for New Trial, Order on Motion for Hearing by Genesis Learning Centers. (Simms, James) Modified text on 7/1/2010 (ab). (Entered: 06/30/2010)

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07/02/2010
07/02/2010 07/12/2010
08/30/2010 08/30/2010 08/30/2010 08/31/2010 08/31/2010 08/31/2010 08/31/2010 09/07/2010 09/08/2010
09/30/2010 11/03/2010

597 Taxation of Costs: For the reasons stated in the Notice of Taxation of Costs 595 , the Clerk hereby taxes costs in favor of Defendant Genesis Learning Centers in the amount of $10,263.06 against Plaintiff. The parties have seven days from the date of this taxation to file exceptions to the Clerk's determination for consideration by the Clerk. The Clerk will consider all such exceptions prior to issuing a Final Taxation of Costs. Following the Final Taxation of Costs, the parties may accept the Clerk's determination or within seven days file a motion before the Court seeking to review the Clerk's determination. Keith Throckmorton, Clerk of Court. (tmw) (Entered: 07/02/2010)
598 USCA Appeal Fees received $ 455 receipt number 34675−12827 re 596 Notice of Cross Appeal filed by Genesis Learning Centers (ab) (Entered: 07/02/2010)
599 Final Taxation of Costs: The Clerk entered a Taxation of Costs in this case on July 2, 2010. The parties had seven days from that date to file exceptions. No exceptions were filed. Accordingly, for the reasons stated in the Notice of Taxation of Costs 595 , the Clerk hereby taxes costs against Plaintiff in favor of Defendant Genesis Learning Centers in the amount of $10,263.06. The parties may accept the Clerk's decision or within seven days file a motion before the Court seeking to review the Clerk's determination. Keith Throckmorton, Clerk of Court. (tmw) (Entered: 07/12/2010)
600 NOTICE of Consent of the Parties to proceed before the Magistrate Judge. (Rose, Benjamin) (Entered: 08/30/2010)
601 Joint MOTION for Settlement Petition for an Order Approving Minor Settlement by Genesis Learning Centers. (Rose, Benjamin) (Entered: 08/30/2010)
602 Joint MOTION for Settlement by Genesis Learning Centers. (Attachments: # 1 Attachment Order)(Rose, Benjamin) (Entered: 08/30/2010)
Case Reassigned to District Judge William J. Haynes, Jr. Senior Judge Robert Echols no longer assigned to the case. (af) (Entered: 08/31/2010)
603 ORDER on Consent of the Parties to Jursidiction by US Magistrate Judge: Case reassigned to Magistrate Juliet E. Griffin. Signed by District Judge William J. Haynes, Jr on 08/31/2010. (ab) (Entered: 08/31/2010)
604 ORDER granting 602 Motion for Settlement. Signed by Magistrate Judge Juliet E. Griffin on 08/31/2010. (ab) (Entered: 08/31/2010)
605 ORDER: It is ORDERED that if this case is remanded to the District Court by the Court of Appeals, this Court will grant the parties' Joint Motion and Joint Petition. Signed by Magistrate Judge Juliet E. Griffin on 08/31/2010. (ab) (Entered: 08/31/2010)
606 ORDER of USCA: The appeals are remanded to the District Court for further proceedings. (No mandate to issue) (ab) (Entered: 09/07/2010)
607 ORDER: The parties' joint petition for approval of the minor settlement 601 is GRANTED. In sum, the Court finds that the settlement is fair and reasonable and in the best interests of the minor child and is APPROVED. The plaintiff and defendant Genesis shall file an agreed order or stipulation of dismissal of all claims brought by the plaintiff against defendant Genesis. It is so ORDERED. Signed by Magistrate Judge Juliet E. Griffin on 9/8/10. (tmw) (Entered: 09/08/2010)
608 ORDER: Deft's 585 motion to exceed page limitation is GRANTED nunc pro tunc. By 10/15/10, the parties shall file an agreed order or stipulation of dismissal of all pltf's claims against deft Genesis. Signed by Magistrate Judge Juliet E. Griffin on 9/30/10. (rd) (Entered: 09/30/2010)
609 ORDER: Counsel for the parties shall convene a telephone conference call with the Court on Wednesday, November 10, 2010, at 2:00 p.m., to be initiated by counsel for defendant Genesis Learning Centers, to address whether and when the parties will file an agreed order or stipulation of dismissal and/or whether the court can dismiss this action. It is so ORDERED. Signed by Magistrate Judge Juliet E. Griffin on 11/3/10. (tmw) (Entered: 11/03/2010)

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11/10/2010 11/15/2010

610 STIPULATION of Dismissal by Gilberto Lopez, by and through the Cumberland Trust &Investment Company as next friend and trustee of The Gilberto Kelly Lopez Irrevocable Trust. (Blackburn, William) (Entered: 11/10/2010)
611 ORDER: On November 10, 2010, the parties filed a stipulation of dismissal 601 . As a result, the telephone conference call with the Court, scheduled by order entered November 3, 2010 609 was CANCELLED. Inasmuch as a consent decree between intervening United States of America and defendant Metropolitan Government of Nashville and Davidson County ("Metro") was entered on February 9, 2010 516 , and the plaintiff's claims against defendant Metro were dismissed by order entered February 9, 2010 517 , all claims in this case have now been resolved. Therefore, this case is DISMISSED with prejudice. This order shall constitute the final judgment in this case. It is so ORDERED. Signed by Magistrate Judge Juliet E. Griffin on 11/15/10. (tmw) (Entered: 11/15/2010)

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