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Henry v. Lane

United States District Court, W.D. Pennsylvania

March 30, 2017

TERI R. HENRY and, VIRGIL G. HENRY for M.H., Plaintiffs,
DR. LINDA LANE Superintendent of Pgh. Public Schools, ET AL., Defendants.


          Arthur J. Schwab United States District Judge

         I. Introduction

         This is 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).

         Pending 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.[1]Although the Court could dismiss this case for failure to prosecute, the Court will instead consider the pending Motions on their merits.

         II. Standards of Review

         A. Rule 12(b)(1)

         A 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).

         A 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)).

         When, 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).

         B. Fed. R. Civ. Pr. 12(b)(4) and 12(b)(5)

         Insufficient 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)).

         A 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)).

         C. Fed. R. Civ. Pr. 12(b)(6)

         Under 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

         Building 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 ...

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