The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter involves claims of a minor, J.L., and his parents, J.L. and C.L. ("Parent Plaintiffs") (collectively, "Plaintiffs") that J.L. was denied a free appropriate public education ("FAPE") for the period of 2001 through 2006 by Defendant Ambridge Area School District ("AASD"). Prior to the filing of this action, the parties engaged in administrative proceedings within the Pennsylvania Department of Education. From the outset, Defendant AASD stipulated that it denied J.L. a FAPE during the 2004-2005 and 2005-2006 school years. Defendant has contended that the statute of limitations provision of the IDEA, effective in 2005, barred any claims of the parents prior to the 2004-2005 school year. In the prior proceedings, both the Hearing Officer and the Appeals Panel Board held that the statue of limitations provision barred such claims while acknowledging numerous violations prior to that school year. Plaintiffs were awarded compensatory education, a remedy which requires AASD to provide educational services to J.L. for the two years of violations as a result of the administrative process. In their complaint, Plaintiffs have alleged that such denial of FAPE by AASD has resulted in violations of the Individuals with Disabilities in Education Act ("IDEA") 20 U.S.C. §§ 1400, et. seq. (2005); section 504 of the Rehabilitation Act ("§ 504") 29 U.S.C. §§ 701, et. seq. (1998), as amended and 29 U.S.C. 704 (1998) and 29 U.S.C. § 794(a) (2002); and the Americans with Disabilities Act ("ADA") 42 U.S.C. §§ 12101, et seq., (1990). Plaintiffs have requested review of an Appeals Court order, monetary damages, and attorneys fees for such violations.
Before the Court is Defendant's Motion to Dismiss [DE 4] . For the following reasons, this Court GRANTS IN PART AND DENIES IN PART said motion.
At the time of the filing of the complaint, J.L. was a seventeen year old high-school student of AASD.*fn1 (Docket No. 1 at ¶ 9). J.L. suffers from several disabilities including Tourette Syndrome, Obsessive Compulsive Disorder, Attention Deficit Disorder, a Specific Learning Disability, and a traumatic brain injury. (Docket No. 1 at ¶ 21.) These conditions have the effect of placing substantial limitations on J.L.'s major life functions, but he does have an average IQ and is therefore capable of learning. (Docket No. 1 at ¶ 21.) As a result of these disabilities, J.L. is a student with disabilities within the meaning of the IDEA, Section 504 and the ADA. (Docket No. 1 at ¶ 22.)
When he was in the third grade, J.L. was classified for educational purposes by the AASD as a child with "other health impairment." (Docket No. 1 at ¶ 23.) At the end of fifth grade, J.L. was diagnosed with a severe Neuropsychological Impairment, Obsessive Compulsive Disorder, Attention Deficit Hyperactivity Disorder, and Tourette Syndrome. (Docket No. 1 at ¶ 26.) During sixth grade, in October of 2000, the AASD Individual Educational Program team determined that J.L. suffered from Neurological Impairment and Emotional Distrubance, and recommended that he be placed at an approved private school. (Docket No. 1 at ¶ 28.) In November 2000, after receiving the consent of his parents, J.L. was removed from public school and placed at the PACE School. (Docket No. 1 at ¶ 29.) At the PACE School, J.L. continued to "exhibit very serious behavioral and social problems." (Docket No. 1 at ¶ 30.) These problems led to J.L. being subject to six weeks of inpatient hospitalization treatment. (Docket No. 1 at ¶ 30.) After his release from the hospital in May 2001, J.L. was placed on homebound instruction. (Docket No. 1 at ¶ 30.)
From the fall of 2001, the beginning of seventh grade, until the end of eleventh grade in the spring of 2006, J.L.'s education involved a combination of one-on-one instruction at the Huntington Learning Center, and some other form of instruction. (Docket No. 1 at ¶ 31.) In seventh and eighth grade, J.L. received services at a residential treatment center. (Docket No. 1 at ¶ 31.) J.L. attended a vocational technical school for the first half of tenth grade. (Docket No. 1 at ¶ 31.) For the remainder of tenth grade and all of eleventh grade, J.L. was placed in a community-based on-the-job training program. (Docket No. 1 at ¶ 31.) During eleventh grade, in May of 2005, AASD completed a reevaluation of J.L.'s educational, behavioral and social needs, ultimately concluding that J.L. was making progress in all areas. (Docket No. 1 at ¶ 32.) After receiving these results, J.L.'s parents obtained an Independent Educational Evaluation from Dr. Margaret Kay which determined that J.L. had developed a Specific Learning Disability as a result of his educational services between 2000- 2005. (Docket No. 1 at ¶¶ 31-32.) The results of Dr. Kay's evaluation were provided to AASD, which conducted a reevaluation in September of 2005, and afterwards, AASD agreed that J.L. had developed a Specific Learning Disability. (Docket No. 1 at ¶¶ 33-34.) The parents of J.L. requested due process hearings in August of 2002, December 2004 and January 2005, but withdrew all three requests after AASD and J.L.'s parents agreed upon various aspects of his educational placement. (Docket No. 1 at ¶ 37.)
On March 3, 2006, Plaintiffs, through counsel, filed notice with the AASD requesting a due process hearing. (Docket No. 1-2 at 5.) A due process hearing was subsequently conducted on May 16, 2006, May 24, 2006 and June 23, 2006. (Docket No. 1-2 at 1.) At the due process hearing, AASD stipulated, on the record, that it had violated J.L.'s right to FAPE for the school years of 2004-2005 and 2005-2006. (Docket No. 1 at ¶ 41.)
After the parties presented evidence, the Hearing Officer held that J.L. was denied FAPE for the 2004-2005 and 2005-2006 school years. (Docket No. 1 at ¶ 44.) The Hearing Officer found that the statute of limitations provision of the IDEA precluded any claims of J.L. from violations that occurred two years before March 3, 2006, the day the due process hearing was requested by J.L.'s parents. (Docket No. 1 at ¶ 45.) This holding excluded J.L.'s claims of denial of FAPE for the 2001-2002, 2002-2003 and 2003-2004 school years. (Docket No. 1 at ¶ 45.) The Hearing Officer ordered that J.L. be awarded 990 hours of compensatory education to remedy the violations in both the 2004-2005 and 2005-2006 school years for a total of 1980 hours of compensatory education. (Docket No. 1 at ¶ 44.) Further, the order required AASD to finance and pre-approve all services, and for the services to be provided to J.L. prior to his twenty-first birthday. (Docket No. 1 at ¶ 48.)
In an appeal to the Appeals Panel, J.L. specifically took exception with the following decisions of the Hearing Officer: the application of the statute of limitations to bar J.L.'s claims prior to 2004; the award of two years compensatory education for violations during the 2004-2005 and 2005-2006 school years; and the requirement that all services be rendered to J.L. prior to his twenty-first birthday. (Docket No. 1 at ¶ 50.) Further, Plaintiffs alleged that the Hearing Officer incorrectly weighed the facts and credibility of the witnesses. (Docket No. 1 at ¶ 50.)
On September 14, 2006, the Appeals Panel affirmed in part and reversed in part the Hearing Officer's order. (Docket No. 1 at ¶ 56.) The Appeals Panel affirmed the Hearing Officer's order applying the statute of limitations to bar J.L.'s claims prior to March 3, 2004. (Docket No. 1 at ¶ 57.) Further, the Appeals Panel reversed the Hearing Officer's order of compensatory damages finding that in addition to the 1980 hours of compensatory education granted, J.L.was entitled to: an additional three (3) hours of compensatory education for every day from March 3, 2004 to the end of the 2004-2005 school year; an additional five and a half (5 1/2 ) hours of compensatory education for every day from March 3, 2004 to the end of the 2005-2006 school year representing other services that J.L. would have received over that period; and granted J.L.'s parents the authority to decide how compensatory education should be used to further J.L.'s education. (Docket No. 1 at ¶ 57.) The Appeals Panel also reversed the Hearing Officer's requirement that the services awarded be used by J.L. prior to his 21st birthday. (Docket No. 1 at ¶ 57.)
On December 13, 2006, J.L., and his parents, filed the instant complaint against AASD seeking review of the Appeals Panel Order, monetary damages, and an award of attorneys' fees for alleged violations of the IDEA, ADA, § 504 and their civil rights under 42 U.S.C. § 1983.*fn2
On March 5, 2007, Defendant filed the instant motion,*fn3 and on March 26, 2007, Plaintiffs filed a Brief in Opposition to Defendant's Motion to Dismiss.
On April 6, 2007, the case was reassigned to the undersigned Judge. Subsequently, a Motion to Seal was filed by Plaintiffs along with a supporting brief. This Court granted said motion and the Administrative Record was filed as sealed documents on June 4, 2007.
On June 6, 2007, the Defendant filed and this Court granted, Defendant's Motion to Supplement its brief. On June 7, 2007, Defendant filed a Supplemental Brief and Plaintiffs filed a Reply Brief to Defendant's Supplemental Brief on June 25, 2007. Plaintiffs filed a motion for a hearing on the supplemental briefs, which was granted by the Court and oral argument was held on July 3, 2007.
On July 11, 2007, this Court, pursuant to the recent Third Circuit decision in A.W. v. Jersey City Pub. Sch., holding that the IDEA cannot be enforced through 42 U.S.C. § 1983, dismissed counts IV and V of the Plaintiffs' complaint. See, A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d. Cir. 2007). (Docket No. 26.) The remaining counts (Counts I, II, III, VI, VII, and VIII) are the subject of the pending motion to dismiss.
At the request of the parties, on July 20, 2007, and August 17, 2007, the Court held lengthy settlement conferences in an effort to resolve this matter. The discussions led to a resolution that J.L. was to proceed to vocational training, but all other outstanding issues remain in dispute.
On December 20, 2007, Plaintiffs filed a notice of additional precedent with the Court, identifying recent district court holdings in the Third Circuit addressing the issue of the availability of monetary damages under the IDEA. (Docket No. 28.)
Pending is a motion to dismiss. Under Bell Atlantic v. Twombly,---U.S.---, 127 S.Ct. 1955, 167 L.ED.2d 929, a complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if the Plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. Recently, the Third Circuit addressed the Twombly decision and its affect on the appropriate pleading standard, finding that despite the new "plausibility" language, Twombly does not demand either a heightened pleading of specific facts or impose a probability requirement on plaintiffs. Phillips v. County of Allegheny, --- F.3d ----, 2008 WL 305025, at *5 (3d Cir. Feb. 5, 2008). In Phillips, the Third Circuit interpreted Twombly as a reaffirmation of both the notice pleading standard under Federal Rule of Civil Procedure 8 and the general standard in a Rule 12(b)(6) motion. Id., 2008 WL 305025, at *3. However, the Third Circuit identified "two new concepts" within the Twombly decision: (1) a plaintiff's obligation under Rule 8 "to provide 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," but Rule 8 requires "that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief,' " in other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level," Id., 2008 WL 305025, at *4 (citing Twombly, 127 S.Ct. at 1964-65, 1966, & n.3); and (2) the " 'no set of facts' language [from Conley v. Gibson, 355 U.S. 41 (1957)] may no longer be used as part of the Rule 12(b)(6) standard," Id., 2008 WL 305025, *4. In short, the Court provided the following guidance as to Twombly's effect:
Thus, under our reading, the notice pleading standard of Rule 8(a)(2) remains intact, and courts may generally state and apply the Rule 12(b)(6) standard, attentive to context and a showing that "the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.
Phillips, 2008 WL 305025, at *5 (citing Twombly, 127 S.Ct. at 1964).
Further, "[i]n determining the sufficiency of the complaint the court must accept all of plaintiffs' well-pled material allegations as true and draw all reasonable inferences therefrom in favor of plaintiffs." McCliment v. Easton Area School Dist., Civil Action No. 07-0472, 2007 WL 2319768, at *1 (E.D. Pa. Aug. 10, 2007) (citing Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997)); see also Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). "The issue is not whether a [Plaintiff] will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1420 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, (1974)). Under this standard, a complaint will be deemed to have alleged sufficient facts if it adequately puts the plaintiff on notice of the essential elements of defendant's claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). However, a court will not accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir.2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir.1997). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp., 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level." Id.. Overall, "courts have an obligation ... to view the complaint as a whole and to base rulings not upon the presence of mere words, but rather, upon the presence of a factual situation which is or is not justiciable. We do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner." Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (quoting City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998)).
While a court's review of a motion to dismiss is ordinarily limited to the contents of the complaint, including any attached exhibits, a court may consider some evidence beyond a complaint on a motion to dismiss "including public records ..., documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case." Core Const. & Remediation, Inc. v. Village of Spring Valley, NY, No. Civ.A. 06-CV-1346, 2007 WL 2844870, at *2 (E.D. Pa. Sept. 27, 2007) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 and n.2 (3d Cir. 1995)) (internal citation omitted).
Finally, the defendant bears the burden to demonstrate that the complaint fails to state a claim. Gould Electronics, Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).
As a preliminary matter, this Court has jurisdiction over Plaintiffs' claims of violations of the IDEA by virtue of section 1415(i)(3)(A) of the IDEA, which provides that a district court is granted subject matter jurisdiction to hear an appeal of an Appeals Panel order, ...