United States District Court, M.D. Pennsylvania
W.K. and M.G., Plaintiffs
PITTSTON AREA SCHOOL DISTRICT, Defendant
MALACHY E. MANNION United States District Judge
before the court is the defendant's motion to dismiss the
plaintiffs' amended complaint in part. (Doc.
18). Upon review, the defendant's motion will be
granted in part and denied in part.
of relevant background, the plaintiffs filed the instant
action on February 26, 2016. (Doc. 1). On July 20, 2016, the
court issued an order granting the plaintiffs' request
for leave to file an amended complaint. (Doc. 16). The
plaintiffs' amended complaint was filed the same day.
(Doc. 17). On July 26, 2016, the defendant filed the pending
motion to dismiss, (Doc. 18), along with a brief in support
thereof, (Doc. 19). The plaintiffs filed an opposing brief on
July 27, 2016. (Doc. 20). On August 2, 2016, the defendant
filed a reply brief. (Doc. 21).
defendant's motion to dismiss is brought, in part,
pursuant to the provisions of Fed.R.Civ.P. 12(b)(1).
Specifically, the defendant argues that the plaintiffs have
failed to exhaust administrative remedies with respect to
certain requested relief. “A motion to dismiss under
Rule 12(b)(1) challenges the jurisdiction of the court to
address the merits of the plaintiff's complaint.”
Vieth v. Pennsylvania, 188 F.Supp.2d 532, 537 (M.D.
Pa. 2002). The failure to exhaust administrative remedies is
a jurisdictional issue and the appropriate device to raise
this issue is a motion to dismiss under Rule 12(b)(1).
See Batchelor v. Rose Tree Media Sch. Dist., 759
F.3d 266, 271 (3d Cir. 2014). A Rule 12(b)(1) dismissal is
not a judgment on the merits, but only a determination that
the court lacks the authority to hear the case. Swope v.
Central York Sch. Dist., 796 F.Supp.2d 592, 599 (M.D.
Pa. 2011). Because the district court is a court of limited
jurisdiction, the burden of establishing jurisdiction always
rests upon the party asserting it. See Kokkonen v.
Guardian Life. Ins. Co. of America, 511 U.S. 375, 377
attack on the court's jurisdiction may be either
“facial” or “factual” and the
“distinction determines how the pleading must be
reviewed.” Constitution Party of Pennsylvania v.
Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial
attack tests the sufficiency of the pleadings, while a
factual attack challenges whether a plaintiff's claims
fail to comport factually with jurisdictional prerequisites.
Id. at 358; see also S.D. v. Haddon Heights Bd.
of Educ., 833 F.3d 389, 394 n. 5 (3d Cir. 2016). If the
defendant brings a factual attack, the district court may
look outside the pleadings to ascertain facts needed to
determine whether jurisdiction exists. Id.
a facial attack, a district court must accept the allegations
stated in a plaintiff's complaint and review “only
whether the allegations on the face of the complaint, taken
as true, allege facts sufficient to invoke the jurisdiction
of the district court.” Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (internal
quotation marks omitted). “Thus, a facial attack calls
for a district court to apply the same standard of review it
would use in considering a motion to dismiss under Rule
12(b)(6), i.e., construing the alleged facts in favor of the
nonmoving party. This is in marked contrast to the standard
of review applicable to a factual attack, in which a court
may weigh and ‘consider evidence outside the
pleadings.'” Aichele, 757 F.3d at 358
(quoting Gould Elecs., Inc. v. United States, 220
F.3d 169, 176 (3d Cir. 2000)) (internal citation omitted). An
attack on jurisdiction based on a failure to exhaust remedies
that is filed prior to answering the complaint is usually,
“by definition, a facial attack” on the pleadings
unless the defendant has offered factual averments in support
of its motion. Haddon Heights, 833 F.3d at 394 n. 5.
defendant's motion to dismiss is also brought, in part,
pursuant to the provisions of Fed.R.Civ.P. 12(b)(6).
This rule provides for the dismissal of a complaint, in whole
or in part, if the plaintiff fails to state a claim upon
which relief can be granted. The moving party bears the
burden of showing that no claim has been stated, Hedges
v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts
alleged in the complaint as true, the plaintiff has failed to
plead “enough facts to state a claim to relief that is
plausible on its face, ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)
(abrogating “no set of facts” language found in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The
facts alleged must be sufficient to “raise a right to
relief above the speculative level.” Twombly,
550 U.S. 544, 127 S.Ct. at 1965. This requirement
“calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of”
necessary elements of the plaintiff's cause of action.
Id. Furthermore, in order to satisfy federal
pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief, ” which
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations
marks omitted) (quoting Twombly, 550 U.S. 544, 127
S.Ct. at 1964-65).
considering a motion to dismiss, the court generally relies
on the complaint, attached exhibits, and matters of public
record. See Sands v. McCormick, 502 F.3d 263 (3d
Cir. 2007). The court may also consider “undisputedly
authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are
based on the [attached] documents.” Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196
(3d Cir. 1993). Moreover, “documents whose contents are
alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading, may be considered.” Pryor v.
Nat'l Collegiate Athletic Ass'n, 288
F.3d 548, 560 (3d Cir. 2002). However, the court may not rely
on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
the court should grant leave to amend a complaint before
dismissing it as merely deficient. See,
e.g., Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007);
Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002); Shane v. Fauver, 213 F.3d 113,
116-17 (3d Cir. 2000). “Dismissal without leave to
amend is justified only on the grounds of bad faith, undue
delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
their amended complaint, the plaintiffs allege that W.K., a
student who resides within the bounds of the Pittston Area
School District, has disabilities which impact his life and
render him eligible for special education services under the
Individuals with Disabilities Education Act,
(“IDEA”), 20 U.S.C. §1401, et seq.
On May 1, 2014, W.K.'s mother, M.G., filed a special
education due process hearing complaint against the School
District alleging that the School District violated federal
statutes by failing to adequately develop educational
evaluations and special education programs for W.K.'s
specific needs. On June 20, 2014, M.G. entered into a special
education settlement agreement with the School District to
resolve the complaint. This settlement resulted from a
resolution session held under 20 U.S.C. §1415(f)(1)(b).
plaintiffs allege that the settlement agreement required the
School District to establish a fund for compensatory
education services in the amount of $20, 000 to be used for,
inter alia, “special education instruction,
remedial and enrichment services provided by certified
teachers or in licensed facilities or programs as indicated
by the Student's needs.” On August 31, 2015, M.G.
requested that tuition be paid for W.K. to attend Holy Cross,
a private school. On September 1, 2015, the School District
rejected M.G.'s request to access W.K.'s compensatory
education fund because the School District believed that
“private school tuition for a non-special education
placement is not a reimbursable item.” Throughout the
Fall of 2015, it was repeatedly requested that the School
District reconsider its position, which the School District
refused to do.
December 9, 2015, the School District's counsel was
provided with a list of approximately thirteen accommodations
that W.K. was receiving at Holy Cross based upon his
disability. Despite receiving this additional information,
the School District continued to reject M.G.'s request
for tuition payments out of the compensatory education
fund/special education settlement agreement. The School
District provided notice or information regarding the
subsequent refusal to pay tuition to Holy Cross from the
compensatory education fund/special education settlement.
upon the above allegations, the plaintiffs have brought the
instant action which contains five counts: Count I -
Discrimination - Failure to Provide Services through
Settlement Agreement (Discrimination Based on Deliberate
Indifference under Section 504); Count II - Breach of Special
Education Settlement Agreement (IDEA); Count III -
Discrimination - ADA; Count IV -Procedural Due Process
Violation - Fourteenth Amendment - Section 1983; and Count V
- Demand for Attorney's Fees (IDEA, 20 U.S.C.
§1415(i)(3)(B); RA, 29 U.S.C. §794(a); ADA, 42
U.S.C. §12133; 42 U.S.C. §1988). By way of the
pending motion, the defendant has moved to dismiss Counts I,
III, and IV of the amended complaint.
defendant initially argues in its motion to dismiss that the
plaintiffs' discrimination claims under Section 504 of
the Rehabilitation Act, (“Section 504”), and the
Americans with Disabilities Act, (“ADA”), must be
dismissed because the plaintiff is seeking to enforce a