By Greg Bird
The McCreary County Board of Education, along with Superintendent Michael Cash and Middle School Principal Todd Waters have filed a motion in United States District Court asking for a dismissal in the case brought against them by a local family claiming their child was bullied in school.
The Lexington law firm of Mazanec, Raskin & Ryder: representing the Board, Cash and Waters, filed their response last Wednesday, calling for the dismissal of the case since the plaintiffs failed to follow procedure in serving summonses to the defendants according to Federal Rules of Civil Procedure.
In the case of Cash and Waters, the letters were sent via certified mail, and addressed to the parties, but there was no indication on the mailing that the letters should be delivered directly to the defendants, and were received and signed for by a Board employee.
As the Board of Education, a similar defense exists according to the motion. A Board can be named in litigation, but the summonses were addressed to Superintendent Cash as the chief officer of the Board. The motion notes while Cash is the chief executive of the Board he is not a member and is only an employee of such.
The motion for dismissal states by not delivering the summonses directly to the defendants, or having them delivered to an agent authorized by law to receive such a document, the plaintiff’s did not comply with proper procedure and the filing should be dismisses.
Christopher Miller, the attorney representing the plaintiffs, said that outcome would be unlikely in such a case, but added he had already filed a motion requesting permission to reissue the summons in federal court.
The motion, entered on September 17 states:
“In a courteous attempt to not embarrass the defendants by having local law enforcement serve them papers at their respective workplaces, Plaintiffs chose to effectuate service of the Summonses via Certified Mail. Inadvertently, a box on a postal form was left unchecked and delivery was therefore not restricted to the ‘addressee only’.”
“Although the Defendants themselves did not sign the “green cards” showing receipt of the Complaint, each clearly received a copy of same as evidenced by their respective Special and Limited Appearance[s] and Motion[s] to Dismiss filed on September 12, 2018.”
“The honest and simple error in proper service can be easily corrected by simply re-issuing the Summonses and re-serving the Defendants with the Complaint.”
Miller, of the Arnold & Miller law firm of Lexington, said he was moved to represent the family after reviewing the case and evidence supporting their claims.
“We feel very strongly in this case,” Miller said. “Kid’s safety and well being in our public schools is a big issue for me.”
United States Chief Judge Karen C. Caldwell, who has been assigned to hear the proceedings, could rule in favor of the defendants by noting they were served improperly and dismiss the case entirely. If so, the plaintiffs could re-file the lawsuit.
An official response to the charges from the Board, Cash and Waters has yet to be filed, and most likely will come after a Judge’s ruling on the motions filed to dismiss.
Following the news of the lawsuit the McCreary County Board of Education released the following statement:
“The McCreary County Public School District board and staff members take the issue of bullying very seriously. The District provides training to its staff on this issue every year. Further, the District has policies and procedures in place for addressing bullying complaints. Through implementation of these policies and procedures in the schools, School District staff strive to appropriately address any such issues which arise. Public school staff are forbidden by law from providing to the public personally identifiable information from any student’s educational records. Therefore, the District does not comment on any particulars of litigation involving students records.”