The opinion of the court was delivered by: Cooper, District Judge
Plaintiff D.G. asserts that he was a student in the Somerset Hills School District (the "District") and was eligible for services and protection under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). (Dkt. entry no. 1, Compl., at ¶¶ 3, 9.) Plaintiffs C.G. and T.G. (together with D.G., the "Plaintiffs") are the parents of D.G. (Id. at ¶ 8.) Plaintiffs commenced this action against the District and the following employees of Bernards High School, the District high school D.G. attended, at all times relevant to the complaint: (1) Lynn J. Caravello ("Caravello"), the principal, (2) Richard Charwin ("Charwin"), the Director of Guidance, (3) Anne Connor ("Connor"), the nurse, (4) Sarah Dundas ("Dundas"), the Guidance Counselor, (5) John Grund ("Grund"), the Student Assistance Counselor, (6) Peter Miller ("Miller"), the Superintendent, and (7) Richard Palazzi ("Palazzi"), the Assistant Principal. (Id. at ¶¶ 9-16.)
Plaintiffs contend, inter alia, that (1) the District's actions and inactions violated D.G.'s rights under the IDEA and "New Jersey Statutes" (count 1), (2) the "Defendant District's refusal to make accommodations for D.G., including but not limited to, refusing to modify its attendance policy also constitutes disability-based discrimination prohibited by Section 504" of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (count 2), (3) the defendants' conduct violated Plaintiffs' rights to procedural due process under 42 U.S.C. § ("Section") 1983 and the Fourteenth Amendment to the United States Constitution (count 3), and (4) the District deprived D.G. of his rights under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq. ("NJLAD") (count 4). (See id. at ¶¶ 19-102.) The District, Charwin, Connor, Dundas, Grund, and Miller (collectively, the "Moving Defendants") move to dismiss the complaint insofar as asserted against them pursuant to Federal Rules of Civil Procedure ("Rules") 12(b)(1) and 12(b)(6). (Dkt. entry no. 4.)*fn1
Plaintiffs oppose the motion. (Dkt. entry no. 6.) For the reasons stated herein, the Court will (1) grant the motion with respect to the (a) IDEA claim and Fourteenth Amendment claim (count 1 and count 3) insofar as such claims are asserted against the Moving Defendants and (b) Rehabilitation Act claim (count 2) insofar as such claim is asserted against Charwin, Connor, Dundas, Grund, and Miller, the individual Moving Defendants, and (2) deny the motion with respect to the (a) Rehabilitation Act claim (count 2) insofar as such claim is asserted against the District and (b) NJLAD claim (count 4) insofar as such claim is asserted against the Moving Defendants.
D.G. attended schools within the District from kindergarten through twelfth grade. (Compl., at ¶ 20.) For purposes of addressing this motion only, the Court will accept the following allegations contained in the complaint as true.
D.G.'s school records indicate that as early as fourth grade he was often "down" and focused on things he did not like about himself rather than his strengths. (Id. at ¶ 23.) In sixth grade, D.G. demonstrated behavioral issues and signs of depression, including suicidal thoughts. (Id. at ¶ 25.) During seventh grade and eighth grade, D.G.'s emotional and behavioral limitations continued and he committed "defiant and aggressive actions." (Id. at ¶ 27.) District personnel informed C.G., D.G.'s mother, that he had threatened to kill himself at least twice. (Id. at ¶ 28.) District personnel did not refer D.G. for any type of evaluation from fourth through eighth grades. (See id. at ¶¶ 26, 29, 32.) However, the principal of D.G.'s elementary school "told D.G.'s parents they must have him privately evaluated and threatened to remove D.G. from school if his suicidal comments persisted." (Id. at ¶ 30.)
D.G.'s depression problems continued when he entered Bernards High School. D.G. spent nearly eight hours in an emergency room in September 2003 while his parents unsuccessfully attempted to secure a place for him at an in-patient psychiatric facility. (Id. at ¶ 34.) The following day, C.G. informed Caravello, Connor, and Grund about her son's increased depression and her concerns about his well-being. (Id. at ¶ 35.) According to Plaintiffs, C.G. "was not offered any assistance and the [d]efendants still did not identify and/or refer D.G. for an evaluation through the school district." (Id. at ¶ 36.)
D.G. was given an in-school suspension after he jumped off the high school bleachers in October 2003. (Id. at ¶¶ 37-39.)
Thereafter, on January 6, 2004, D.G. was admitted to a hospital and diagnosed with major depression, alcohol abuse, and cannabis abuse. (Id. at ¶ 41.) D.G. was admitted to Sunrise House in April 2004 for four weeks, and Touchstone Hall in September 2004 for four months. (Id. at ¶ 45.) Certain defendants were informed about D.G.'s hospitalization and his inability to attend school. (Id. at ¶¶ 42, 46.) Grund told C.G. that District personnel would contact D.G.'s counselors while he was in the treatment facilities to provide course syllabi and homework, but Plaintiffs assert, upon information and belief, that no District personnel ever contacted D.G.'s counselors during the relevant time period. (Id. at ¶¶ 48-49.)*fn2 Plaintiffs further assert that the defendants did not offer any services to support D.G.'s transition back into Bernards High School. (Id. at ¶ 51.)
C.G. repeatedly asked Dundas, Connor, Caravello, and Grund to evaluate D.G. for eligibility for special education services, but no meeting was ever scheduled to discuss C.G.'s requests and she was not given any written response indicating why her evaluation requests had been denied. (Id. at ¶¶ 53-55.) Dundas told C.G. that D.G. had not been evaluated for eligibility for special education services because "he can do the work." (Id. at ¶ 64.) Accordingly, despite C.G.'s repeated requests, D.G. was not evaluated or provided with services to accommodate his depression and he continued to have difficulty in school. (Id. at ¶¶ 56, 66.)
Caravello told C.G., on May 17, 2006, that D.G. would not be permitted to graduate in June with his classmates because he had missed too many class sessions, and thus, would not receive credit for certain classes. (Id. at ¶ 67.) D.G. was also not permitted to walk in the graduation procession or attend the Senior Class Breakfast. (Id. at ¶ 71.) C.G. contacted Miller and the president of the Somerset Hills Board of Education on behalf of D.G. but both refused to intervene. (Id. at ¶ 73.)
D.G. and C.G. filed a due process request with the Office of Administrative Law ("OAL") in July 2006 asserting that D.G. should be awarded a high school diploma. (Id. at ¶ 75.) However, because the District contended that the OAL lacked the authority to issue a high school diploma, C.G. and D.G. withdrew their petition. (Id. at ¶¶ 76-77.) D.G. took the G.E.D. examination in October 2006 and received a diploma from the New Jersey Department of Education on November 7, 2006. (Id. at ¶ 78.) Nevertheless, Plaintiffs commenced this action on September 25, 2007 seeking, inter alia, compensatory and consequential damages from the District and certain District personnel, who were employees of Bernards High School at times relevant to the complaint. (See id.)
I. Legal Standards Governing a Motion to Dismiss
A defendant may move to dismiss a claim for lack of subject matter jurisdiction under Rule 12(b)(1) at any time. Fed.R.Civ.P. 12(b)(1); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437-38 (D.N.J. 1999). The defendant may facially challenge subject matter jurisdiction by arguing that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction. Id. at 438. Under this standard, the Court assumes that the allegations in the complaint are true, and may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438.
A defendant can also attack subject matter jurisdiction by factually challenging the jurisdictional allegations set forth in the complaint. Iwanowa, 67 F.Supp.2d at 438. Under this standard, "no presumptive truthfulness attaches to plaintiff's allegations and the existence of disputed material facts will not preclude the Court from evaluating for itself the merits of jurisdiction claims." Pashun v. Modero, No. 92-3620, 1993 U.S. Dist. LEXIS 7147, at *6 (D.N.J. May 26, 1993). The Court may consider affidavits, depositions, and testimony to resolve factual issues and is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Iwanowa, 67 F.Supp.2d at 438. The defendant may factually attack subject matter jurisdiction at any stage in the litigation, including before the answer has been filed. Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990) (explaining that a defendant may factually attack subject matter jurisdiction before filing an answer); see Pashun, 1993 U.S. Dist. LEXIS 7147, at *6.
The Court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). On a motion to dismiss, the Court generally must accept as true all of the factual allegations in the complaint, and must draw all reasonable inferences in favor of the plaintiff. Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 134 (3d Cir. 2004); Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). However, the Court need not credit bald assertions or legal conclusions alleged in the complaint. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)". Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
The Court, when considering a motion to dismiss, may generally not "consider matters extraneous to the pleadings." In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426. However, if the Court exercises discretion and permits a party to present matters outside the pleadings, the Court must (1) convert the motion to dismiss into one for summary judgment, and (2) allow the parties a reasonable opportunity to present all material pertinent to such a motion under Rule 56. See Fed.R.Civ.P. 12(b). An exception to this general rule is that the Court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents that are integral to or ...