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Longo v. Good Sherpherd Child Care Center

United States District Court, Middle District of Pennsylvania

August 19, 2014

DEBRA LONGO, individually and as guardian of A.S.P., a minor, Plaintiff



Before the court for disposition is Defendant The Good Shepherd Child Care Center’s motion to dismiss Plaintiff Debra Longo’s (hereinafter “plaintiff”) complaint. The matter has been fully briefed and is ripe for disposition.


The minor plaintiff, A.S.P., suffers from multiple medical conditions including PICA and ADHD. (Doc. 1, Complaint ¶ 7).[1] These conditions limit the minor plaintiff’s major life activities and restrict her ability to interact with others. (Id. ¶ 12). Minor plaintiff attended Defendant The Good Shepherd Child Care Center (hereinafter “defendant” or “daycare center”), a daycare facility, from June 2010 through August 18, 2011. (Id. ¶ 11). She regularly napped while at the daycare center. (Id. ¶ 15).

The complaint alleges that defendant wrongfully and illegally restrained the minor plaintiff to the bed in which she napped. (Id. ¶ 17). The defendant placed a blanket over the plaintiff’s head, “wrapped the blanket around her back and then placed the end of the blanket under the leg of the bed[.]” (Id.) Plaintiff instructed the defendant to stop restraining the minor plaintiff in such a manner, but the practice continued. (Id. ¶¶ 19-21).

Additionally, the minor plaintiff watched “Scooby Doo” cartoons before her naps at the daycare center and may have heard them while restrained in her bed. (Id. ¶ 22).[2] These cartoons gave her nightmares, which she continues to have to this day. (Id. ¶ 23).

Plaintiff also alleges that the defendant precluded the minor plaintiff from “having the services of a therapeutic support staff” and “from being treated by a behavioral service consultant while attending the daycare.” (Id. ¶¶ 24-25).

Based upon these factual allegations the plaintiff instituted the instant lawsuit by filing a complaint on February 3, 2014. (Doc. 1). The complaint includes the following three counts: Count I, Violation of the Americans With Disabilities Act (“ADA”); Count II, Violation of the Pennsylvania Code governing child daycare centers, 55 Pa. Code § 3270, et seq.; and Count III, Negligence. (See, id.)

On April 15, 2014, the defendant moved to dismiss the case for lack of jurisdiction and filed a brief in support thereof. (Docs. 6 & 7). The plaintiff filed a brief in opposition to the motion, and the defendant filed a reply brief on May 23, 2014. (Docs. 11 & 12). Thus, the motion is ripe for disposition, bringing the case to its present posture.


As this action is brought pursuant to a federal statute, specifically, the ADA, 42 U.S.C. § 12182, et seq., we have jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). We have supplemental jurisdiction over the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.

Standard of review

This case is before the court pursuant to defendants' motion to dismiss for lack of subject matter jurisdiction. Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for “lack of subject-matter jurisdiction.” “Challenges to subject matter jurisdiction under Rule 12(b)(1) may be ‘facial’ or ‘factual.’” Turicentro v. Am. Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002). A facial attack serves to “contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true.” Id. On the other hand, if the attack is factual, the court “accords plaintiff's allegations no presumption of truth. In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings.” Id.

The defendant’s Rule 12(b)(1) motion is a factual attack on the court’s jurisdiction, because it challenges not merely “an alleged pleading deficiency, but rather the actual failure of [plaintiff’s] claims to comport with the jurisdictional prerequisites” of the ADA. United States ex rel. Atkinsonv. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). As such, plaintiff bears the burden of establishing jurisdiction, and unlike some other motions, no presumptive truthfulness attaches to the allegations in the complaint. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Moreover, the court may consider evidence outside the ...

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