The opinion of the court was delivered by: Padova, J.
C.J.S., a minor who was at all relevant times a boarding elementary school student at Girard College, brings this action pursuant to 42 U.S.C. § 1983 against the Board of Directors of City Trusts (the "Board") as trustee for Girard College, alleging that Residential Assistants ("RAs") employed by Girard College, who were poorly trained in the recognition, investigation, and handling of impermissible sexual activity, caused C.J.S. to be victimized in a series of incidents in which older students raped and sodomized him, forced him to allow them to perform oral sex on him, and forced him to perform oral sex on them, in violation of his Fourteenth Amendment rights (Count One). C.S., who is C.J.S.'s mother, asserts a state law claim for infliction of emotional distress (Count Two). The Board moves to dismiss Count One pursuant to Federal Rule of Civil Procedure 12(b)(6),*fn1 and moves to dismiss Count Two pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, we grant the Motion in part and deny it in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Complaint alleges the following facts. Girard College is an educational institution that was established by bequest from Stephen Girard in trust to the City of Philadelphia. (Compl. ¶ 5.) Its primary mission is to provide for the full nurturing and development needs of orphaned children in the Philadelphia area from grades one through twelve. (Id. ¶ 7.) Girard College provides its boarding students with an education, food, clothing, healthcare, and a caring place to live. (Id.) The Board was established by a Pennsylvania statute to administer estates bequeathed to the City of Philadelphia, including Girard College. (Id. ¶ 5.) Pursuant to the statute, the Board and Girard College are one legal entity.*fn2 (Id. ¶ 6.)
C.J.S. is a minor who now resides with his mother in Philadelphia. (Id. ¶ 3.) From 2006 to 2010, he was a boarding student in elementary school at Girard College. (Id. ¶¶ 3, 17, 39.) Some time after C.J.S.'s 2006 enrollment in Girard College as a first grade boarding student, older students began bullying and intimidating C.J.S. into impermissible sexual activity. (Id. ¶¶ 17-18.) C.J.S. was most frequently bullied and intimidated by two other students, T.J. and A.R. (Id. ¶ 19.)
Girard College maintains a policy of assigning each of its students a "homework buddy." (Id. ¶¶ 20-21.) Pursuant to that policy, when a student tells a Residential Assistant ("RA") that he needs help with his homework, the RA sends the student to the homework buddy for an unsupervised and unmonitored session. (Id. ¶¶ 20-21, 23-24.) C.J.S.'s homework buddy was T.J. (Id. ¶ 20.) When C.J.S. needed help with his homework, his RA sent him to T.J., who agreed to help C.J.S. with his homework only if C.J.S. sat on his lap. (Id. ¶ 22.) As a proximate result of the homework buddy policy, and of "Girard College's failure to train or educate RA's in the proper methods of supervising adolescent children and recognizing, reporting and investigating suspected rape, sodomy or other impermissible sexual activity among the adolescent student body, [C.J.S.] . . . was often left unsupervised and exposed to sexual bullying by [T.J.] . . . ." (Id. ¶ 25.)
In October 2009, an RA discovered C.J.S., T.J., and A.R. in a bathroom, and C.J.S.'s pants were down. (Id. ¶ 28.) T.J. and A.R. were bullying C.J.S. into allowing them to perform oral sex on him and to sodomize him. (Id. ¶ 27.) When the RA entered the bathroom, C.J.S. was "about to be sodomized." (Id. ¶ 30.) The RA asked C.J.S. why his pants were down, and C.J.S. falsely said that he had been masturbating. (Id. ¶ 29.) The RA "did not recognize the incident as one involving impermissible sexual activity, and made no effort to further investigate it, because Girard College had not trained or educated him in the proper methods of supervising adolescent children and recognizing, reporting and investigated suspected rape, sodomy or other impermissible sexual activity among the adolescent student body." (Id. ¶ 32.) Because the RA did not investigate the bullying and impermissible sexual activity, those activities "continued and escalated." (Id. ¶ 33.) Consequently, throughout the remainder of 2009 and into 2010, C.J.S. was often left unsupervised with T.J. and A.R., who bullied him into allowing them to perform oral sex on him or to sodomize him several times a week. (Id. ¶ 34.) One way in which they bullied C.J.S. involved threatening to tell other students that it was C.J.S. who initiated the sexual activity. (Id. ¶ 35.)
On one occasion, an RA approached C.J.S. and told him that he had heard that C.J.S. had been in the shower unsupervised with T.J. (Id. ¶ 36.) The RA did not question C.J.S. about the incident in any way, did not investigate it, and did not report it. (Id. ¶ 37.) Rather, he told C.J.S. that if he heard about a similar incident happening again, both C.J.S. and T.J. would be sent to bed early.
(Id.) "[C.J.S.] . . . would not have remained at the mercy of the sexual bullies . . . and would not have been sexually bullied by the other two boys, if the RA had been properly trained and educated in the proper methods of supervising adolescent children and recognizing, reporting and investigating suspected rape, sodomy or other impermissible sexual activity among the adolescent student body." (Id. ¶ 38.)
In February, 2010, C.J.S. reported the sexual bullying and the bathroom incident to his mother, C.S. (Id. ¶ 39.) She became psychologically and physically ill. (Id. ¶ 40.) She brought the matter to Girard College's attention and removed C.J.S. from the school. (Id. ¶ 39.)
As a result of the foregoing, C.J.S. has "suffered irreparable psychological damage, mental anguish and pain, humiliation, and physical pain." (Id. ¶¶ 42-43.) He "will be forced to undergo psychological treatment and therapy," possibly for the rest of his life. (Id. ¶ 44.) C.S. has suffered "grief, physical pain, headaches, anguish, anxiety, loss of sleep, and depression, for all of which she was treated by, and continues to be treated by, a psychologist." (Id. ¶ 45.)
C.J.S. asserts a claim against the Board pursuant to 42 U.S.C. § 1983 for a violation of his Fourteenth Amendment rights (Count One). C.S. asserts a state law claim against the Board for infliction of emotional distress (Count Two). Plaintiffs seek compensatory damages and attorney's fees.
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986), cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), which gives the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quotation omitted). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) may challenge the court's jurisdiction on either "factual" or "facial" grounds. Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Where, as here, the defendant argues that the complaint on its face fails to establish the court's jurisdiction, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citations omitted). Ordinarily, the plaintiff bears the burden of showing that jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, where the defendant's challenge to subject matter jurisdiction is based on sovereign immunity, "the party asserting the immunity bears the burden" of showing that immunity applies. M&M Stone Co. v. Pennsylvania Dep't of Envtl. Prot., Civ. A. No. 07-4784, 2008 WL 4467176, at *13 (E.D. Pa. Sept. 29, 2008) (citation omitted); see also Woodham v. Dubas, 256 F. App'x 571, 575 (3d Cir. 2007) (placing burden on defendant where defendant asserted state law sovereign immunity).
The Board moves to dismiss Count One pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that C.J.S. has not stated a claim upon which relief may be granted. The Board moves to dismiss Count Two pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that the Board is immune from suit for infliction of emotional distress under state law, and pursuant to Federal Rule of ...