United States District Court, W.D. Pennsylvania
TERI R. HENRY and, VIRGIL G. HENRY for M.H., Plaintiffs,
DR. LINDA LANE Superintendent of Pgh. Public Schools, ET AL., Defendants.
MEMORANDUM OPINION ON MOTION TO DISMISS (DOC.
J. Schwab United States District Judge
a civil rights action brought by Plaintiffs, Teri and Virgil
Henry, as parents of M.H., against numerous Defendants in
connection with what appears to be an appeal of a May 16,
2016 final order and decision of a special education hearing
officer who is employed by the Pennsylvania Office for
Dispute Resolution. However, in the extensive narrative of
Plaintiffs' pro se complaint, they reference
claims relating to M.H.'s current Individualized
Education Program (IEP).
before this Court is a Motion to Dismiss brought pursuant to
Fed. R. Civ. Pr. 12(b)(1), (4), (5) and (6), a Motion for
More Definite Statement pursuant to Fed. R. Civ. P 12(e), and
a Motion to Strike Minor from Caption and Case filed by
Defendants Pittsburgh Public School District, Denise (unknown
last name), Mary-Lou (unknown last name), Amy Berner, Tracy
Brezicki, Paulette Colonna, Mary-Jane Conley, Sylbia Kunst,
Cicily Kurian, Dr. Linda Lane, David May-Stein, Tom Spickler,
Donna Westbrooks-Martin, Kimberly Zangrilli, and Aimee
Zundel, collectively referred to as the “School
District Defendants, ” (doc. 16). Plaintiffs
response thereto was due on March 10, 2017, and as of this
date, no response has been filed.Although the Court could
dismiss this case for failure to prosecute, the Court will
instead consider the pending Motions on their merits.
Standards of Review
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1)
challenges this Court's “very power to hear the
case.” See Judkins v. HT Window Fashions
Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (quoting
Mortenson v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). As the party asserting
jurisdiction, Plaintiff “bears the burden of showing
that its claims are properly before the district
court.” Dev. Fin. Corp. v. Alpha Housing &
Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In
reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this
Court must distinguish between facial attacks and factual
attacks. See Petruska v. Gannon Univ., 462 F.3d 294,
302 (3d Cir. 2006).
facial attack challenges the sufficiency of the pleadings,
and the Court must accept the Plaintiff's allegations as
true. Id. A Defendant who attacks a complaint on its
face “[asserts] that considering the allegations of the
complaint as true, and drawing all reasonable inferences in
favor of [plaintiff], the allegations of the complaint are
insufficient to establish a federal cause of action.”
Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa.
2001). Dismissal is proper under Rule 12(b)(1) only when
“the claim clearly appears to be immaterial and made
solely for the purpose of obtaining jurisdiction or. . . is
wholly insubstantial and frivolous.” Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S.
678, 682 (1946)).
as in this case, a Defendant launches a factual attack on
subject matter jurisdiction, “no presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Petruska, 462 F.3d at
302 (quoting Mortenson, 549 F.2d at 891). In a
factual attack, this Court must weigh the evidence relating
to jurisdiction, with discretion to allow affidavits,
documents, and even limited evidentiary hearings. See
United States ex rel. Atkinson v. Pa. Shipbuilding Co.,
473 F.3d 506, 514 (3d Cir. 2007).
Fed. R. Civ. Pr. 12(b)(4) and 12(b)(5)
process is the inadequacy of the actual document served on
Defendant. Salaam v. Merlin, 2009 WL 2230925 at *2
(D.N.J. July 22, 2009) (Simandle, J) (citing 5B Wright &
Miller, Federal Practice & Procedure (2004) § 1353
at 334). “The United States Court of Appeals for the
Third Circuit has held that ‘dismissal of a complaint
is inappropriate when there exists a reasonable prospect that
service may yet be obtained.'” Deppenbrook v.
Pension Ben. Guar. Corp., 2011 WL 1045765 at *2 (W.D.
Pa. Mar. 17, 2011) (Cercone, J.) (citing Umbenhauer v.
Woog, 969 F.2d 25, 30 (3d Cir.1992)).
plaintiff is required to effectuate service upon all
defendants. Fed.R.Civ.P. 4. When a Defendant files a Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5) for failure to
effectuate service, “in resolving a motion under Rule
12(b)(5), ‘the party making the service has the burden
of demonstrating its validity when an objection to service is
made.'” Reed v. Weeks Marine, Inc., 166
F.Supp.2d 1052, 1054 (E.D. Pa. 2001) (citing Grand
Entertainment Group, Ltd. v. Star Media Sales, Inc., 988
F.2d 476, 488-89 (3d Cir.1993)).
Fed. R. Civ. Pr. 12(b)(6)
Rule 12(b)(6), a Complaint must be dismissed for
“failure to state a claim upon which relief can be
granted.” Detailed factual pleading is not required -
Rule 8(a)(2) calls for a “short and plain statement of
the claim showing that the pleader is entitled to
relief” - but a Complaint must set forth sufficient
factual allegations that, taken as true, set forth a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The plausibility standard does not
require a showing of probability that a claim has merit,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007), but it does require that a pleading show “more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
Determining the plausibility of an alleged claim is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679
upon the landmark United States Supreme Court decisions in
Twombly and Iqbal, the United States Court
of Appeals for the Third Circuit explained that a District
Court must undertake the following three steps to determine
the sufficiency of a complaint:
First, the court must take note of the elements a plaintiff
must plead to state a claim. Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a
court should assume their veracity ...