The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Defendant Washington Township Board of Education's ("the Board") Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and for Reconsideration,*fn1 based on A.W. v. The Jersey City Public Schools, et al., 486 F.3d 791 (3d Cir. May 24, 2007). For the reasons that follow, the Motion will be granted.
The facts and procedural history of this case are discussed at length in this Court's previous summary judgment opinion. See Gutin v. Washington Twp. Bd. of Ed., 467 F.Supp.2d 414 (D.N.J. Dec. 21, 2006). Only the relevant facts will be discussed here.
Adam Gutin is almost 23 years old now. In 2004, when he was 21 years old, he and his parents, Mitchell and Margo Gutin, filed the instant complaint. Paragraph 1 of the Complaint states: "This is an action for violation of 42 U.S.C. § 1983." Likewise, each count of the complaint (with the exception of the parents' loss of consortium claim) includes a heading which reads in part, "violation of 42 U.S.C. § 1983." The substantive allegations of the complaint assert violations of Adam's constitutional, federal, and state statutory rights arising out of Adam's positive drug tests and subsequent expulsion from Washington Township High School when Adam was 16 years old.
As noted in this Court's previous opinion, neither the Complaint, nor Plaintiffs' letter brief in opposition to summary judgment, make entirely clear the legal basis for many of Plaintiffs' claims.*fn2 Thus, this Court, based on the allegations in the Complaint, and the administrative record below, undertook to determine the legal basis for each claim.
For example, "Count I-- Violation of 42 U.S.C. § 1983-- Drug Testing" asserts that the Board violated Adam's rights when it tested him for drugs, pursuant to district policy, without his or his parents' consent. The words "Fourth Amendment" are nowhere to be found in the Complaint, but the Court concluded, and neither party disputes, that the substantive right alleged to be violated is found in the Fourth Amendment to the United States Constitution. Accordingly, the Court analyzed the claim as such and granted summary judgment to the Board.*fn3
Similarly, Counts II and IV, respectively, are entitled "42 U.S.C. § 1983-- Expulsion," and "42 U.S.C. § 1983-- Homebound Instruction." Count II alleges that Adam's automatic expulsion under the zero tolerance drug policy violated his "rights to a free and appropriate public education." Count IV alleges that "Defendant violated [Adam's] right to a free and appropriate public education pursuant to the New Jersey Constitution and Plaintiff's rights under 42 U.S.C. § 1983 insofar as Defendant did not provide proper homebound instruction to Plaintiff pursuant to Federal Law, State Law, and Court Order." Based on these allegations, and Plaintiff's allegation that he was "protected by a 504 Accommodation Plan as a result of suffering from Attention Deficit Hyperactivity Disorder," (Compl. ¶ 5), the Court interpreted Counts II and IV as alleging causes of action under § 504 of the Rehabilitation Act of 1973, the IDEA,*fn4 and under state law. These two counts--- the two that were not dismissed on summary judgment*fn5 -- are the subject of the Board's present motion.
A motion to dismiss under Rule 12(b)(1) challenges the subject matter jurisdiction of a court to address the merits of the plaintiff's complaint. Motions pursuant to Fed. R. Civ. P. 12(b)(1) may either "attack the complaint on its face" or "attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings." Id. Facial attacks are similar to Fed. R. Civ. P. 12(b)(6) motions because the Court must consider the allegations of the complaint as true. "The factual attack, however, differs greatly" because "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. . . . [N]o 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." Id. Plaintiffs bear the burden of proving the Court's jurisdiction. Id. Challenges to a court's subject matter jurisdiction may be raised at any time. Sedivy v. Richardson, 485 F.2d 1115, 1116-17 (3d Cir. 1973) ("An objection to the adjudicatory power of a tribunal may generally be raised for the first time at any stage of the litigation.").
Upon a motion for reconsideration, a decision "may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . . or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); see also L. Civ. R. 7.1(i).
The Board presently asserts that this Court lacks subject matter jurisdiction over Plaintiffs' IDEA / § 504 claims because Plaintiffs failed to exhaust their administrative remedies with respect to those claims.*fn6 When the Board previously moved for summary judgment, it did not raise the exhaustion issue because, according to the Board, "not one reference was made in the Complaint to either [§ 504 or IDEA]" and, in its view, those claims "did not exist at any time prior to the Court's [summary judgment] decision." (Def's Br. at 2) These statements notwithstanding, the Board also asserts that Plaintiffs did pursue, to a limited extent, those claims at the state administrative level but failed to exhaust them. The Court recognized this potential issue in its summary judgment opinion, but declined to rule on it because the Board had not briefed it and, at the time, the administrative record before the Court was somewhat murky. See ...