IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 26, 2009
JUNIOR DOE, ET AL. PLAINTIFFS
ALLENTOWN SCHOOL DISTRICT, ET AL. DEFENDANTS
The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION & ORDER
Plaintiffs, three students at Allentown's Central Elementary School ("CES"), brought this action against Allentown School District ("ASD" or "School District") and Lehigh Valley Hospital ("LVH") asserting various federal and state law claims, including one count alleging violations of Plaintiffs' constitutional right to bodily integrity pursuant to 42 U.S.C. § 1983. The Amended Complaint also names seventeen ASD employees ("ASD Individual Defendants") and two employees of LVH, nurse Margaret Perry ("Perry") and social worker Kathleen E. Coughlin ("Coughlin"), who provided healthcare services to CES students and allegedly oversaw healthcare for ASD (collectively, "LVH Individual Defendants").*fn1 The claims in the Amended Complaint arise out of a series of alleged sexual assaults perpetrated by Defendant F.H.-a twelve-year old boy who transferred to CES at the beginning of the 2003 school year-against four first-grade boys in bathroom stalls at CES. (Am. Compl. ¶¶ 39, 40, 49, 51, 54).*fn2 The assaults took place between December 2003 and March 2004. (Id. at ¶ 40). Three of the alleged victims, by and through their parents and guardians, filed the Amended Complaint in this action.
Before the Court is Plaintiffs' Motion for Leave to File a Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a). (Doc. No. 93). In lieu of a reply brief in response to Defendants' briefs opposing Plaintiffs' Motion, Plaintiffs filed a draft Second Amended Complaint containing the proposed counts and supporting factual allegations. (Doc. No. 104). Plaintiffs have requested the inclusion of the following additional counts: (a) one sexual discrimination and harassment count against ASD, the ASD Individual Defendants, and LVH pursuant to Title IX, 20 U.S.C. § 1681 et seq . (Proposed Second Am. Compl., Count II); (b) separate professional negligence counts against Defendants Perry, Coughlin, and LVH (Proposed Second Am. Compl., Counts III, IV, and V);*fn3 (c) one general negligence count against F.H. (Proposed Second Am. Compl., Count VI);*fn4 and (d) one general negligence count against F.H.'s father and F.H.'s mother (Proposed Second Am. Compl., Count VII).*fn5 Plaintiffs also request permission to add previously-identified minor, "Nicholas Coe," as an additional party plaintiff with respect to all causes of action. (Pls.' Mot. at 2).*fn6
The Court has carefully considered the written submissions of the parties, as well as the oral arguments presented to the Court on January 30, 2009 and accompanying supplemental briefs. (Doc. No. 114). For the reasons stated below, Plaintiffs' Motion is granted in part and denied in part.
Federal Rule of Civil Procedure 15 states that leave to file an amended complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). "A party generally should be permitted to amend a complaint where if it did so it could state a claim." Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 309 (3d Cir. 2003). "Amendment, however, is not automatic." Butz v. Lawns Unlimited Ltd., 568 F. Supp. 2d 468, 479 (D. Del. 2008). A district court may exercise its discretion to deny the request "if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith, or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party." Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). In applying that standard, the Court is mindful of the Third Circuit's teaching that our exercise of discretion should comport with the liberal approach to amendment embodied in the judicial interpretation of Rule 15. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 887 (3d Cir. 1992).
I. Undue Delay, Bad Faith, Dilatory Motives, and Prejudice
Defendants claim that leave to file any amendments to the Amended Complaint should be denied because Plaintiffs have demonstrated undue delay, bad faith, or dilatory motives, and because any amendment would also result in prejudice. Defendants specifically contend that Plaintiffs indicated an intent to file a Second Amended Complaint as early as October 25, 2007, yet failed to seek leave to amend until April 17, 2008, and only provided Defendants with a Proposed Second Amended Complaint on June 6, 2008. (LVH Defs.' Opp'n Br. at 3; ASD Defs.' Opp'n Br. at 4). "The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become 'undue,' placing an unwarranted burden on the court, or will become 'prejudicial,' placing an unfair burden on the opposing party." Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984), cert. denied, 469 U.S. 1122 (1985).
While there certainly was some delay in Plaintiffs' request to amend the Amended Complaint, this delay was not undue given that discovery has not yet been conducted on the counts in the Amended Complaint, initial disclosures have not yet been exchanged, a scheduling order has not yet been issued by the Court, and a Rule 16 conference has not yet been held. (Pls.' Br. at 6). Counsel for all parties also acknowledged at oral argument that a Rule 26(f) conference has not yet been conducted. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001) ("[D]elay alone is an insufficient ground to deny leave to amend."); Adams, 739 F.2d at 869 ("Since amendment of a complaint is not unusual at the summary judgment stage of the case, we would not characterize plaintiffs' failure to amend their complaint earlier as 'undue delay.'") (internal citation omitted); Achey v. Crete Carrier Corp., No. 07-3592, 2009 WL 101843, at *2 (E.D. Pa. Jan. 14, 2009) (delay was not undue even after defendants had filed motion for partial summary judgment); Bernheim v. Estate of Bedrick, No. 07-2195, 2007 WL 2900377, at *3 n.4 (D.N.J. Oct. 1, 2007) (no undue delay where the "plaintiff filed his motion the same day as the Rule 16 conference and before discovery commenced."). Because Defendants have only shown the mere passage of time, without establishing that this delay would place an unwarranted burden on the Court or the parties, this delay is insufficient to preclude Plaintiffs from adding claims to the Amended Complaint given the liberal approach to amendment embodied in Rule 15.*fn7
Additionally, no real prejudice would be created if the Court were to grant Plaintiffs' Motion for Leave to File a Second Amended Complaint. See Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) ("[P]rejudice to the non-moving party is the touchstone for the denial of an amendment."). As stated above, this case is still in its early stages, as discovery has not yet been conducted. (Pls.' Br. at 6). Defendants have also had the opportunity to brief and fully address the specific allegations made in Plaintiffs' Proposed Second Amended Complaint. See Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 106 F. Supp. 2d 737, 745 (D.N.J. 2000) ("The test for prejudice is whether the non-moving party will be denied 'a fair opportunity to defend and offer additional evidence' to address the amendment.") (quoting Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 924 (3d Cir. 1984)). Finally, while Plaintiffs' Proposed Second Amended Complaint contains new counts, the underlying facts supporting these new counts are "based on facts similar to those comprising the original [amended] complaint." See Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000); see also Achey, 2009 WL 101843, at *3. Given that this litigation is still in its infancy, Defendants had a fair opportunity to address Plaintiffs' new claims, and the new counts are based on facts already known to Defendants, there is little, if any, prejudice in permitting Plaintiffs to amend their Amended Complaint.
Accordingly, Defendants have failed to show undue delay, bad faith, dilatory motives, or prejudice that would compel the Court to deny Plaintiffs' request to amend the Amended Complaint. As a result, amendment will be permitted unless Defendants can show that amendment would be futile.
"Futility" means that "the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Alpharma Inc. Sec. Litig., 372 F.3d 137, 153 (3d Cir. 2004) (internal quotations omitted). Thus, in assessing "futility," the district court applies the same standard of legal sufficiency that applies under Federal Rule of Civil Procedure 12(b)(6). Id. at 153-54. Rule 12(b)(6) allows courts to screen out cases where "a complaint states a claim based upon a wrong for which there is clearly no remedy, or a claim which the plaintiff is without right or power to assert and for which no relief could possibly be granted." Port Auth. of New York and New Jersey v. Arcadian Corp., 189 F.3d 305, 312 (3d Cir. 1999). The Third Circuit Court of Appeals instructs that "the complaint will withstand a Fed. R. Civ. P. 12(b)(6) attack if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery." See Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 124-25 (3d Cir. 1998). In deciding a motion to dismiss, a court is required to accept all of the plaintiff's factual allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Thus, amendment should be denied when it is "beyond doubt that the plaintiff can prove no set of facts in support of his [new] claim[s] which would entitle him to relief." See Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980).
A. Title IX Claim Against Allentown School District
In Count II of Plaintiffs' Proposed Second Amended Complaint, Plaintiffs allege that ASD and the ASD Individual Defendants (collectively, "ASD Defendants") "were aware that Defendant F.H. committed acts of peer sexual harassment on the minor Plaintiffs and others in the past" and "created a substantial risk of harm of sexual assault of others" by failing "to take any action to prevent Defendant F.H. from committing such acts on the Plaintiffs." (Proposed Second Am. Compl. ¶ 83, Count II). According to Plaintiffs, the conduct perpetrated by Defendant F.H. and known to the ASD Defendants created "a hostile educational environment for the minor Plaintiffs" in violation of Title IX of the Education Amendments of 1972. (Id. at ¶ 84).
The ASD Defendants initially contended that Plaintiffs should not be permitted to amend the Amended Complaint to add this Title IX claim because such an amendment would be futile under the doctrine set forth in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981). The ASD Defendants argued that, under the Sea Clammers doctrine, the proposed Title IX claim could not coexist with the current Section 1983 constitutional claim against ASD (Count I) because the Title IX claim (Proposed Count II) would render the Section 1983 claim superfluous. (ASD Defs.' Sur-reply Br. at 2, 3-5). In particular, the ASD Defendants asserted that the proposed amendment should not be permitted because, otherwise, Plaintiffs' Section 1983 claim-which arises out of the same conduct that forms the basis of Plaintiffs' Title IX claim-would be "subsumed" by Plaintiffs' Title IX claim. (Id.).
In Sea Clammers, the U.S. Supreme Court held that "[w]hen a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983." Sea Clammers, 453 U.S. at 20 (internal quotation omitted). The Third Circuit Court of Appeals has applied this rule to hold that Title IX claims subsume Section 1983 constitutional claims against school districts and state officials acting in their official capacities. See Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir. 1990), overruled by Fitzgerald v. Barnstable Sch. Comm., 129 S.Ct. 788 (2009); see also Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 176 (3d Cir. 1993), cert. denied, 510 U.S. 1043 (1994). The rationale behind the Third Circuit's extension of the Sea Clammers doctrine to Title IX claims was that the remedies provided in Title IX implied that Congress viewed Title IX, not Section 1983, as the exclusive vehicle for redressing violations of civil rights by federally-funded educational institutions. District courts within the Third Circuit have similarly used this extension of the Sea Clammers doctrine to bar Section 1983 claims where such claims were based on alleged violations of the constitutional right to bodily integrity and brought concurrently with Title IX claims. See, e.g., Jones v. Indiana Area Sch. Dist., 397 F. Supp. 2d 628, 646 (W.D. Pa. 2005) (dismissing, under Sea Clammers doctrine, Section 1983 claim based on constitutional right to bodily integrity made against school officials in their official capacities); Miller v. Kentosh, No. 97-6451, 1998 WL 355520, at *3 (E.D. Pa. June 29, 1998) (dismissing Section 1983 bodily integrity claims against school officials in their official capacities under Sea Clammers doctrine at motion to dismiss stage).
However, the Third Circuit's extension of the Sea Clammers doctrine to preclude concurrent Title IX and Section 1983 claims was recently overruled by the U.S. Supreme Court's decision in Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788 (2009). There, the Supreme Court unanimously held that Title IX does not preclude an accompanying Section 1983 action alleging unconstitutional gender discrimination in schools. In Fitzgerald, the daughter of the plaintiffs was allegedly molested by a boy on a school bus. Id. at 792. Based on subsequent investigations conducted by the police and the school, the school's principal concluded that there was insufficient evidence to discipline the boy. Id. The school principal proposed some remedial measures to the plaintiffs, all of which were rejected based on the plaintiffs' belief that these proposals essentially punished their daughter. Id. The plaintiffs countered with proposals of their own, which were not acted upon by the defendant school superintendent. Id. The plaintiffs then began driving their daughter to school so that she would avoid contact with the boy on the bus. Id. The plaintiffs' daughter, however, continued to inform the plaintiffs of additional incidents at school, which were reported to the school principal and ultimately resulted in plaintiffs' daughter missing days of school. Id. The plaintiffs subsequently brought claims against the local school committee under both Section 1983 for violations of the Equal Protection Clause and Title IX. Id. The defendants filed a motion to dismiss plaintiffs' Section 1983 action, which was granted by the district court. Id. at 793. The First Circuit Court of Appeals affirmed and, like the Third Circuit, concluded that the plaintiffs' Title IX claim precluded their Section 1983 action. Id. The Supreme Court reversed and remanded, reasoning that Title IX did not contain a remedial scheme comparable to those at issue in Sea Clammers and other similar cases. Id. at 795-96. The Fitzgerald Court found that, because Title IX's only express enforcement mechanism is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions, it must be concluded that "Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights." Id. at 797. After Fitzgerald-as Defendants acknowledged at oral argument-the Sea Clammers doctrine does not render as futile Plaintiffs' effort to amend their Amended Complaint to include a Title IX claim against ASD alongside their existing Section 1983 claim. Therefore, Plaintiffs' request to amend their Amended Complaint to include a Title IX claim against ASD is granted.*fn8
However, Plaintiffs' effort to include a claim for punitive damages against ASD in the ad damnum clause of the proposed Title IX count is futile.*fn9 The School District contends that, as a municipal entity, it is not subject to claims for punitive damages under Title IX. It is not in dispute that public school districts, like ASD, are considered municipal entities. See, e.g., Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989). "The general rule today is that no punitive damages are allowed [against municipalities] unless expressly authorized by statute." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261 n.21 (1981); see also Cook County v. United States ex rel. Chandler, 538 U.S. 119, 129 (2003); Flier v. Cayuga County, No. 03-578, 2006 WL 2655698, at *9 (N.D.N.Y. Sept. 15, 2006). However, while this principle is most often applied to preclude punitive damages against municipalities in the Section 1983 context, district courts within this circuit have held that punitive damages cannot be imposed on a municipality under Title IX. See, e.g., Dawn L. v. Greater Johnstown Sch. Dist., No. 06-0019, 2008 WL 857453, at *14 (W.D. Pa. Mar. 31, 2008) ("The Court agrees that punitive damages under Title IX are not recoverable against a municipal entity such as the Defendant school district."); Crawford v. Sch. Dist. of Philadelphia, No. 98-1851, 1998 WL 288288 at *2 (E.D. Pa. June 3, 1998) (holding, at motion to dismiss stage, that "the plaintiffs may not recover punitive damages from the School District of Philadelphia" under either Section 1983 or Title IX); see also Landon v. Oswego Unit Sch. Dist. No. 308, 143 F. Supp. 2d 1011, 1013 (N.D. Ill. 2001) (holding that "the considerations of common law history, public policy, and Supreme Court precedent do not support exposing a municipality to punitive damages for the misconduct of its officials pursuant to Title IX").*fn10 The Court agrees with the reasoning of these courts and therefore holds that it would be futile to permit Plaintiffs to include a claim for punitive damages as part of their Title IX claim against ASD.*fn11
Furthermore, Plaintiffs' request to add Title IX claims against the ASD Individual Defendants in their individual capacities is denied as moot, as Plaintiffs withdrew this request at oral argument. See, e.g., Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir. 1999) ("Several circuits have held that because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX."); Nelson v. Temple Univ., 920 F. Supp. 633, 636-38 (E.D. Pa. 1996) (holding that Title IX did not support a cause of action against an individual who was the administrator of student organizations and activities at a university).*fn12
B. Title IX Claim Against Lehigh Valley Hospital
At oral argument, Plaintiffs stated that they are also asserting a Title IX claim against LVH. It is worth noting that Plaintiffs' proposed Title IX count does not even mention LVH, Perry, or Coughlin, nor does Plaintiffs' Motion for Leave to File a Second Amended Complaint state that they are making a Title IX claim against LVH. Rather, Plaintiffs' Motion explains that their Title IX allegations are made only against "the School District of the City of Allentown and individual School District employees." (Pls.' Mot. at 2). Plaintiffs contended during oral argument that their Proposed Second Amended Complaint should be read to make out a Title IX claim against LVH by virtue of the Complaint's assertion that LVH "functioned under color of state law, as the entity responsible for health care, medical care, education, social services, and associated treatment within certain schools of Allentown School District." (Proposed Second Am. Compl. ¶ 7) (emphasis added). In further support of their Title IX claim against LVH, Plaintiffs cited the following language from their Proposed Second Amended Complaint: (1) the clause in Plaintiffs' proposed Title IX count incorporating by reference acts stated earlier in the Complaint engaged in by LVH (Id. ¶ 75);*fn13 and (2) the "Wherefore" clause of Plaintiffs' proposed Title IX count seeking judgment against "Defendant Allentown School District, jointly and severally with other named Defendants," for damages. (Id., Proposed Count II).
The Court does not read Plaintiffs' proposed Title IX count as asserting a claim against LVH. However, now taking Plaintiffs at their word that they are asserting a Title IX claim against LVH based on their representations during oral argument, such a claim does not survive a futility analysis. Under Title IX, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ." 20 U.S.C. § 1681(a) (emphasis added).*fn14 By Title IX's own terms, even if LVH is found to have acted under color of state law, such a finding, by itself, would not be sufficient to impose liability.*fn15 Indeed, the Court is required to further inquire into whether LVH runs a program or activity involving "education" and receives "federal financial assistance." See O'Connor v. Davis, 126 F.3d 112, 117 (2d Cir. 1997) ("[W]e think it evident that in order to implicate Title IX in the first instance, an entity must have features such that one could reasonably consider its mission to be, at least in part, educational."), cert. denied, 522 U.S. 1114 (1998); 20 U.S.C. § 1687 (stating that, to qualify as a "program or activity," any part of this entity must be "extended Federal financial assistance"). The Proposed Second Amended Complaint does allege that LVH provides educational services, see Proposed Second Am. Compl. ¶ 7, but makes no mention of LVH receiving "federal financial assistance."*fn16 Though LVH may, in fact, receive federal funds, the Court cannot speculate as to whether this is the case. Accordingly, the Court infers that Plaintiffs are attempting to place LVH in the shoes of a federal funds recipient by virtue of LVH's relationship with ASD-an entity that receives federal funds-as the provider of healthcare to students within the School District.
A bare allegation that an entity contracts with a school district is insufficient to constitute an assertion that the entity receives federal funds. As the U.S. Supreme Court held in the context of Section 504 of the Rehabilitation Act of 1973-which is similar to Title IX*fn17 -an entity that is a beneficiary of the federal funds received by another is not considered a federal funding recipient unless the entity is "in a position to accept or reject [their] obligations as part of the decision whether or not to 'receive' federal funds." See Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605-06 (1986). Similarly, the Third Circuit Court of Appeals has concluded that, in determining whether an indirect recipient of federal funds is covered by the statute, a court should consider, among other things, "the degree to which the entity is able to control decisions made with respect to the money, the most important decision being whether the grant money should be accepted at all." Smith v. Nat'l Collegiate Athletic Ass'n, 266 F.3d 152, 161 (3d Cir. 2001). Plaintiffs, however, have pleaded no facts in their Proposed Second Amended Complaint suggesting that LVH has a relationship with ASD enabling LVH to control the decisions made with respect to ASD's federal funding. See J. v. Sch. Dist. of Philadelphia, No. 06-3866, 2007 WL 1221216, at *4-5 (E.D. Pa. Apr. 25, 2007) (dismissing Rehabilitation Act claim at Rule 12(b)(6) stage where plaintiff "pleaded no facts suggesting Community Council has a relationship with the School District enabling it to control the decisions made with respect to the District's federal funding").
Furthermore, in cases that do not involve official policy of the recipient entity, "a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (emphasis added); see also Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 646-47 (1999) ("We thus conclude that recipients of federal funding may be liable for 'subject[ing]' their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school's disciplinary authority .") (emphasis added). Plaintiff's proposed Title IX count does not make any allegation that LVH is, pursuant to 20 U.S.C. § 1682, an "appropriate person" with authority to take corrective action to end the alleged discrimination within the School District. See Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1293-94 (11th Cir. 2007) (affirming dismissal of Title IX claim at 12(b)(6) stage where plaintiff "failed to allege that [defendant university president] has authority to take action to change the policies of the Board of Regents"); Frederick v. Simpson College, 149 F. Supp. 2d 826, 836-37 (S.D. Iowa 2001) (discussing the minimal level of authority requirement in Gebser). Despite Plaintiffs' contentions, having an affiliation with a federally- funded educational institution is simply not enough to impose Title IX liability. Given these deficiencies in Plaintiffs' Proposed Second Amended Complaint, Plaintiffs' proposed Title IX claim against LVH is futile.*fn18
An appropriate Order follows.
AND NOW, this 26th day of February 2009, upon consideration of Plaintiffs' Motion for Leave to File a Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a), Defendants' responses, Plaintiffs' Reply consisting of a Proposed Second Amended Complaint, Defendants' Sur-reply briefs, and after having heard oral argument and examined the parties' supplemental submissions, it is hereby ORDERED that Plaintiffs' Motion (Doc. No. 93) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that:
1. Plaintiffs' request to amend the Amended Complaint to include a sexual discrimination and harassment count under Title IX, 20 U.S.C. § 1681 et seq., against Defendant Allentown School District is GRANTED. However, Plaintiffs' request to amend the Amended Complaint to add a claim for punitive damages against Defendant Allentown School District for violations of Title IX, 20 U.S.C. § 1681 et seq. is DENIED WITH PREJUDICE. Furthermore, Plaintiffs' request to amend the Amended Complaint to include a sexual discrimination and harassment count under Title IX, 20 U.S.C. § 1681 et seq., against the ASD Individual Defendants in their individual capacities is DENIED, WITHOUT PREJUDICE, AS MOOT, as this request was withdrawn at oral argument. Finally, Plaintiffs' request to amend the Amended Complaint to include a sexual discrimination and harassment count under Title IX, 20 U.S.C. § 1681 et seq., against Defendant Lehigh Valley Hospital is DENIED WITHOUT PREJUDICE.
2. Plaintiffs' request to amend the Amended Complaint to include professional negligence counts against Defendants Lehigh Valley Hospital, Margaret Perry, and Kathleen E. Coughlin is GRANTED. Plaintiffs' request to amend the Amended Complaint to seek punitive damages against Defendant Lehigh Valley Hospital for professional negligence is DENIED, WITHOUT PREJUDICE, AS MOOT, as this request was withdrawn at oral argument.
3. Plaintiffs' request to amend the Amended Complaint to include one general negligence count against minor Defendant F.H. is GRANTED.
4. Plaintiffs' request to amend the Amended Complaint to include one general negligence count against both F.H. Father and F.H. Mother is GRANTED. After F.H. Father and F.H. Mother are properly served with the Second Amended Complaint, they will be given an opportunity to respond to the claims asserted by Plaintiffs by answering the Complaint or filing an appropriate motion under the Federal Rules of Civil Procedure.
5. Plaintiffs' request to add previously-identified minor, "Nicholas Coe," as an additional party plaintiff with respect to all causes of action through the filing of a Second Amended Complaint is GRANTED.
6. Plaintiffs are directed to file and serve on all parties a Second Amended Complaint consistent with this Order within ten (10) days of the date of this Order.
7. Defendants, excluding F.H. Father and F.H. Mother, shall file a responsive pleading to Plaintiffs' Second Amended Complaint within twenty (20) days of being served with the Second Amended Complaint.
THOMAS M. GOLDEN, J.