United States District Court, D. New Jersey
A.P., minor by her parent and guarding S.P. and S.P. individually, Plaintiffs,
THE ALLEGRO SCHOOL, INC., DEBBY LEWINSON, RICHARD ZANELLA, PRINCIPAL, NIAMAH GRAHAM, TEACHER, JOHN DOES 1-5, AS YET UNIDENTIFIED INDIVIDUALS AND ABC ENTITIES 1-5 AS YET UNIDENTIFIED ENTITIES, Defendants.
MCNULTY UNITED STATES DISTRICT JUDGE
A, P., is on the autism spectrum and suffers from severe
behavioral disorders. Represented by her mother, S.P., she
seeks damages against the Allegro School, Inc. ("Allegro
School"), as well as several current and former
administrators and staff (collectively, "Allegro")
for allegedly violating her individualized education plan
("IEP") by failing to collect data and, in some
instances, fabricating reported data over the course of
several years. She asserts a claim under Section 504 of the
Rehabilitation Act ("Rehab Act"), as well as state
law claims for violation of the New Jersey Law Against
Discrimination ("NJLAD"), negligence, breach of
contract, promissory estoppel, misrepresentation, fraud,
negligent infliction of emotional distress, and intentional
infliction of emotional distress. Allegro School and the
other defendants removed this case to federal court based on
the Rehab Act claim. They now move to dismiss the complaint
in its entirety.
I find that I lack subject matter jurisdiction over the only
federal-law claims in the complaint, I grant the motion to
dismiss. Having done so, I will sua sponte remand
the case to State court.
Background and Procedural History 
summarize the allegations of the Complaint, which are
accepted as true for the purposes of this motion to dismiss
suffers from severe autism, manifested in cognitive deficits,
functional and behavioral problems, and severe learning
disabilities, and has been in need of special programming for
the disabled since birth. (Cplt. Â¶Â¶ 12-13.) She is verbal,
but her communication is impaired to the point that she has
difficulty socializing and integrating with other students in
a mainstream environment. (Id. Â¶ 13.) S.P. is the
parent and natural guardian of minor A.P., and they both
reside within the Edison Township School District in New
Jersey. (Id. Â¶ 1.) The school board for the District
placed A.P. at the Allegro School, a private school for
special needs students in Morris County (Id. Â¶Â¶ 2,
9.) She was a student there from July 9, 2007 to Dec. 10,
2010. (Id. Â¶11.) Debby Lewinson, Richard Zanella,
and Niamah Graham were all staff members and administrators
at Allegro involved in A.P.'s education at some point or
another. (Cplt. Â¶Â¶ 3-5.)
was tasked with providing A.P. with Applied Behavior Analysis
("ABA") programming, a scientifically based method
designed for students with autism that breaks down skills
into smaller processes and uses various teaching methods to
ensure that its students progress in their education.
(Id. Â¶ 14.) Particularly relevant to this litigation
is that the ABA method requires strict and rigorous
documentation of the student's behavior and progress
through the course of the program, including graphing of
skills, data acquisition, target and integrity skill
documentation, and baseline evaluations, among other things.
(Id.) Without proper documentation, the ABA program
is not functional. (Id. Â¶ 15.)
A.P. did well at Allegro. (Id. Â¶ 16.) However,
during the course of the 2009-10 school year, A.P. began to
exhibit louder and more abusive verbal behavior and increased
aggression. (Id. Â¶ 17.) Concerned by this regression
in her daughter's development, S.P. expressed her
dissatisfaction at a June 1, 2010 IEP meeting, at which all
the defendants were present. (Id. Â¶ 18.) They
explained to S.P. that A.P. was in fact doing well.
(Id.) S.P. then conducted a classroom observation of
A.P. with a Board Certified Behavior Analyst present on Oct.
6, 2010. (Id. Â¶ 19.) At this observation, S.P.
requested the relevant data and discovered that some data was
not being collected. (Id. Â¶ 20.) She even discovered
that some of the staff had fabricated some data, which was
then used to support that contention that A.P. was
progressing when she really wasn't. (Id.) She
determined that the staff at Allegro had failed to take data
for almost half a year. (Id. Â¶ 21.) With the help of
a sympathetic staff member at the school, S.P. began to learn
of the full extent of the falsified data. (Id. Â¶
12, 2010, another meeting was convened to discuss these
issues. (Id. Â¶ 28.) S.P. alleges that Allegro
admitted it had been inflating A.P.'s progress during the
past year and said it was attempting to analyze some of the
data that had been located. (Id. Â¶ 30.) Soon after
this, A.P. was removed from the school and placed in a
home-based program pending placement in an appropriate
out-of-district program. (Id. Â¶ 33.) She was
subsequently placed at the Douglass Developmental
Disabilities Center in New Brunswick. (Id. Â¶ 34.)
13, 2011, A.P. filed an administrative complaint against the
District with the New Jersey Department of Education
("NJDOE"). The complaint initially requested
mediation only, but was later amended to request compensatory
education. After an unsuccessful mediation that occurred on
July 21, 2011, A.P. amended her petition to include Allegro
and Debby Lewison and converted the mediation request into a
due process request. On Sept. 1, 2011, the matter was
transferred over to the Office of Administrative Law
("OAL") with a hearing scheduled for Sept. 13,
2011. Before that hearing could occur, the District and A.P.
settled the case, but only as to the claims between
themselves. The agreement specifically carved out Allegro
from the settlement, stating "[t]he Allegro School shall
not be deemed to be a party to this Settlement Agreement, and
both parties retain their rights to proceed against the
Allegro School in the [OAL] or in any other forum."
(Def. Br., Settlement Agreement Â¶ 16, Ex. B.) The settlement
provided that A.P. would receive home-based education
services, reimbursed partly by private insurance and partly
by the district, and that placement would be secured for A.P.
at another out-of-district site. The District did not admit
any liability, and all claims were released against it. On
Nov. 30, 2011, the Administrative Law Judge at OAL reviewed
the settlement and found it fully disposed of all the issues
in controversy between the parties.
a year and a half later, on April 26, 2013, A.P. filed suit
against Allegro in New Jersey state court seeking
compensatory damages and punitive damages for violations of
the New Jersey Law Against Discrimination
("NJLAD"), fraud, and breach of contract. Allegro
filed a motion to dismiss in response, but in December 2013,
while that motion was pending, the parties entered into a
provisional agreement to settle the case. The motion was
withdrawn, but in the end S.P. did not find the settlement
terms acceptable. A.P.'s counsel was replaced, and
current counsel took over after prior counsel left on Dec. 4,
10, 2015, Allegro again moved to dismiss, while A.P.
cross-moved to amend her complaint to add federal claims of
violations of § 504 of the Rehab Act and aiding and
abetting those violations, as well as additional state law
claims. Allegro opposed much of the cross-motion to amend,
but did not oppose addition of the § 504 claims. On Feb.
5, 2016, the state court denied Allegro's motion to
dismiss and granted A.P.'s cross-motion to amend.
filed her newly amended complaint on Feb. 17, 2016. Allegro
filed another motion to dismiss but then withdrew that
motion, refiling it on May 23, 2016. After a case management
conference and a phone conference, the parties agreed to a
voluntary dismissal without prejudice. This seemingly
operated as a suspension, with plaintiff reserving the right
to refile the action within six months.
refiled the amended complaint on November 29, 2016, and
served it on December 19, 2016. Allegro served a notice of
removal on Jan. 13, 2017. Once in this federal court, on Feb.
3, 2017, Allegro filed the current motion to dismiss the
complaint. (ECF no. 5) Plaintiff filed an opposition (ECF no.
14), defendant filed a reply (ECF no. 20), and plaintiff,
with leave, filed a surreply (ECF no. 24). The matter is
fully briefed and ripe for decision.
Standard of Review
Rule 12(c) or 12(b)(6) motion
brings this motion to dismiss as both a Rule 12(b)(6) and a
Rule 12(c) motion. (Def. Br. 1.) A motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c) is often
indistinguishable from a motion to dismiss, except that it is
made after the filing of a responsive pleading. Fed.R.Civ.P.
12(h)(2) "provides that a defense of failure to state a
claim upon which relief can be granted may also be made by a
motion for judgment on the pleadings." Turbe v.
Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir.
1991). Accordingly, when a 12(c) motion asserts that the
complaint fails to state a claim, at least where no party
relies on admissions in the answer, the familiar Rule
12(b)(6) standard applies. Id.
12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief
can be granted. The defendant, as 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). In
deciding a Rule 12(b)(6) motion, a court must take the
allegations of the complaint as true and draw reasonable
inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (traditional "reasonable inferences
principle not undermined by Twombly, see infra).
Civ. P. 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 55 (2007). Thus, the
complaint's factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level,
so that a claim is "plausible on its face."
Id. at 570; see also Umland v. PLANCO Fin.
Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That
facial-plausibility standard is met "when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that defendant is liable for misconduct
alleged." Ashcroft v. Iqbal. 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). While
"[t]he plausibility standard is not akin to a
'probability requirement'... it asks for more than a
sheer possibility." Iqbal, 556 U.S. at 678.
Rule 12(b)(1) motion
argues, however, that at least part of this motion is
properly reviewed under the standards of Rule 12(b)(1). That
is so, she says, because a motion to dismiss for failure to
exhaust administrative remedies under the IDEA, she says,
implicates the subject matter jurisdiction of the court. (Pl.
Br. 14-15.) In that, she is correct. A federal court may not
exercise subject-matter jurisdiction over an IDEA dispute
unless the administrative remedies have been exhausted.
DM. v. N.J. Dep't of Educ,801 F.3d 205, 212 (3d
Cir. 2015) (citing Batchelor v. Rose Tree Media Sch.
Dist,759 F.3d 266, 269 (3d Cir. 2014)
("Appellants' federal claims indeed fall within the
ambit of the IDEA and require exhaustion .... We will
therefore affirm the District Court's dismissal of
Appellants' federal claims pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction.")).