The opinion of the court was delivered by: O'neill, J.
Pro se plaintiff Jemil Bantum alleges that defendants*fn1
violated the rights guaranteed to her by the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400, et seq. Presently before
me are two motions to dismiss. The first was filed on January 12, 2011
by the School District of Philadelphia and the School Reform
Commission. The second was filed on January 19, 2011 by Foundations,
Inc. The two motions are based on substantially the same grounds.
Plaintiff has filed responses to both motions. For the following
reasons, I will reserve ruling on the motions pending additional
briefing from the parties.
Plaintiff is the mother of J.B., a student in the Philadelphia School District. She alleges that as early as first grade J.B. exhibited symptoms of social, emotional and behavioral disabilities. He was unable to work well either independently or in groups. He had difficulty following directions and paying attention. He demonstrated "disruptive, defiant and attention seeking behavior." Am. Compl. ¶ 2.
When he entered third grade, J.B.'s symptoms caused school officials to refer him for an evaluation, which revealed his reading ability to be at a "pre-primer level." Am. Compl. ¶ 4.
J.B.'s difficulties have continued to escalate during his academic career. As of the date the amended complaint was filed, J.B.'s test scores were in the "below basic" range in both reading and basic mathematics, indicating that he was at least four years behind his classmates in reading and reading comprehension and at least two years behind in math reasoning.
Plaintiff alleges that defendants have been deficient in addressing J.B.'s educational needs. Specifically, she notes that the school district has not: "conduct[ed] an appropriate Functional Assesment of Behavior;" "assess[ed] [J.B's] Occupational Therapy needs;" "administer[ed] Speech and Language assessments;" "assess[ed] [J.B's] needs relating to attention and motivation;" and/or "assess[ed] his considerable needs in Reading, Written Expression, Mathematics and his significant social, emotional and behavioral needs." Am. Compl. ¶ 10. Plaintiff further alleges that the individualized education plan ("IEP") designed for J.B. by defendants was both procedurally and substantively deficient.
When plaintiff filed the amended complaint, J.B. was failing all of his classes and was not making progress in reading, written expression or math. J.B. was also exhibiting the same behavioral difficulties that had originally appeared in first grade. Plaintiff asserts that defendants' failure to develop an IEP adequate to address J.B.'s educational needs amounts to a denial of his right to a free appropriate public education.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1955, 173 L. Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.
Defendants argue that I must dismiss the case for four reasons. First, because plaintiff has failed to exhaust her administrative remedies and thus this Court lacks subject matter jurisdiction to consider her claims. Second, because plaintiff has not pled sufficient facts to satisfy the standards set forth in Twombley and Iqbal. Third, because plaintiff may not assert claims on behalf of a minor under IDEA. Fourth, because plaintiff did not serve the summons and amended complaint in a timely fashion. Defendant School Reform Commission adds a fifth ground for dismissal applicable only to it--that it is "not a body corporate or legal entity" and therefore "lacks capacity to be sued." School Reform Commission's Br. at 8.
I am obligated first to satisfy myself that this Court has subject matter jurisdiction over the claims presented in this case. IDEA provides that United States District Courts "shall have jurisdiction of actions brought under this section without regard to the amount in controversy."
20 U.S.C. § 1415(i)(3)(A). As a prerequisite to the District Court's ability to exercise subject matter jurisdiction, however, IDEA requires that a plaintiff exhaust her administrative remedies. See Jeremy H. by Hunter v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996) (discussing IDEA's exhaustion requirement); Komninos by Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994) ("[I]t is clear from the language of the Act that Congress intended plaintiffs to complete the administrative process before resorting to federal court."). In order ...