United States District Court, D. Connecticut
RULING AND ORDER ON DEFENDANTS' MOTIONS TO
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Wong and Suzanne Hoy (“Plaintiffs”) filed this
lawsuit alleging violations of the Individuals with
Disabilities Education Improvement Act (“IDEA”),
20 U.S.C. § 1400, et seq.; the Americans with
Disabilities Act of (“ADA”), 42 U.S.C. §
12101, et seq.; Section 504 of the Rehabilitation
Act (“§ 504”), 29 U.S.C. § 794(a); and
the Family Educational Rights and Privacy Act
(“FERPA”), 20 U.S.C. § 1232g. The Complaint
specifically alleges that Southington Board of Education
(“Southington”) and the State Department of
Education (“State DOE”) (collectively
“Defendants”) have violated their son's
(“Student”) right to a free appropriate public
State DOE moves to be dismiss from this lawsuit, ECF No. 14,
and Southington moves to dismiss certain of Plaintiffs'
claims for want of subject matter jurisdiction, ECF No. 13.
reasons that follow, the Court GRANTS the
State DOE's motion. The Court DENIES in
part and GRANTS in part Southington's
FACTUAL AND PROCEDURAL BACKGROUND
allege a number of general and specific claims under the
IDEA. See generally Compl., ECF No. 1. Specifically,
the Complaint maintains that Defendants failed to
appropriately “label” Student and therefore
Defendants failed to provide services that appropriately
addressed Student's disability thus denying Student a
FAPE for Student's “K-8 school years.”
Id. ¶ 2; see also Id. ¶ 16. In
addition to other remedies not relevant at this time,
Plaintiffs seek reimbursement, with interest, for tuition,
medical expenses, and transportation, due to Defendants
failure to provide Student with a FAPE during Student's
third through eighth grades. Compl. at 14.
9, 2016, Plaintiffs filed an administrative complaint, Case
No. 16-0517, with the Connecticut Department of Labor.
Board's Br. at 3. Hearing Officer Janis Jerman (“HO
Jerman”) presided over the hearing concerning
Plaintiffs' administrative complaint. Id. On May
12, 2016, the Board filed a motion to all claims in
Plaintiffs' administrative complaint that fell outside
the two-year statute of limitations under 34 C.F.R. §
300.507(a)(2) and Conn. Gen. Stat. § 10-76h(a)(4), and
any claim Plaintiffs raised regarding alleged violations of
the FERPA. Id. HO Jerman ruled in the Board's
favor and dismissed Plaintiffs' claims relating IDEA
violations that allegedly occurred during school periods
prior to May 10, 2014, and each claim alleging violations of
the FERPA. Id. at 3‒4; May 24, 2016, Decision
on Mot. to Dismiss at 2, Board's Br., Ex. 6, ECF No 13-8.
the presentation of evidence at a hearing on July 18, 2016,
and continued on July 26, 27, and August 27 of 2016, HO
Jerman issued a final decision and order in which she
determined that Student's parents were not entitled to
reimbursement for the cost of the unilateral private
placement and no other remedy was appropriate. Board's
Br. at 6‒7.
October 14, 2016, Plaintiffs filed a Complaint in Superior
Court of Connecticut, Judicial District of New Britain, under
20 U.S.C. § 1415(i)(2)(A), appealing the final decision
and order of HO Jerman. Compl. ECF No. 1-1. Southington then
removed Plaintiffs' lawsuit to federal court under 20
U.S.C. § 1448(c). ECF No. 1. The lawsuit alleges four
principal claims: (1) inappropriately labeling and denial of
services, thus depriving Student of a FAPE, 20 U.S.C. §
1400, et seq.; (2) denial of an appropriate
individualized education plan in violation of § 504, 29
U.S.C. § 794(a); (3) denial of other reasonable
accommodations under the ADA, 42 U.S.C. § 12101, et
seq.; and (4) denial of access to education records in
violation of the FERPA, 20 U.S.C. § 1232g.
State Board of Education moves to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Southington also moves to dismiss the Complaint under Federal
Rule of Civil Procedure 12(b)(1). ECF No. 13, and. ECF No.
January 16, 2018, the Court held a hearing on Defendants'
pending motions. ECF No. 20. Plaintiffs failed to appear, but
sent a message to counsel, on the morning of the hearing,
that they wished to continue the hearing. Plaintiffs,
however, failed to contact the Court and did not move to
continue the hearing. Counsel for Defendants appeared for the
hearing, but Plaintiffs did not. After waiting thirty
minutes, the Court adjourned the hearing. As of the date of
this opinion, Plaintiffs still have not contacted the Court
to re-schedule the hearing, and since Defendants are the
moving parties, the Court will issue its ruling without a
STANDARD OF REVIEW
district court may not entertain a case where it lacks
subject matter jurisdiction. See Fed. R. Civ. P.
12(b)(1); Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (“A case is properly dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) when
the district court lacks the statutory or constitutional
power to adjudicate it.”). The Court must
“[c]onstrue all ambiguities and draw[ ] all inferences
in [the plaintiff]'s favor, ” and “may refer
to evidence outside the pleadings.” Id.
“A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that
it exists.” Id. (citing Malik v.
Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). This burden
is met “as long as [the] complaint states a colorable
federal claim.” Rodriguez v. DeBuono, 175 F.3d
227, 233 (2d Cir. 1999) (citation omitted).
reviewing a motion to dismiss under Rule 12(b)(1), “a
court must accept as true all material factual allegations in
the complaint.” Shipping Fin. Serv. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citation
omitted). “[J]urisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.”
APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)
district court may also dismiss a case for failure to state a
claim under Fed.R.Civ.P. 12(b)(6). In order to survive a
motion to dismiss under Rule 12(b)(6), a complaint must
contain factual allegations sufficient to “raise a
right to relief above the speculative level” and
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 555, 570 (2007). A claim is facially
plausible if “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “detailed factual allegations” are not
required, a complaint must offer more than “labels and
conclusions, ” or “a formulaic recitation of the
elements of a cause of action, ” or “naked
assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557.
Plausibility at the pleading stage is nonetheless distinct
from probability, and “a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of
[the claims] is improbable, and . . . recovery is very remote
and unlikely.” Id. at 556 (internal quotation
courts considering motions to dismiss under Rule 12(b)(6)
generally “must limit [their] analysis to the four
corners of the complaint, ” they may also consider
documents that are “incorporated in the complaint by
reference.” Kermanshah v. Kermanshah, 580
F.Supp.2d 247, 258 (S.D.N.Y. 2008). The Court may also
consider matters subject to judicial notice, which include
publicly filed documents. See Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007);
DeSilva v. N. Shore-Long Island Jewish Health Sys.
Inc., 770 F.Supp.2d 497, 506-07 (E.D.N.Y. 2011).
pro se complaints “must be construed liberally
and interpreted to raise the strongest arguments that they
suggest.” Sykes v. Bank of Am., 723 F.3d 399,
403 (2d Cir. 2013) (internal quotation marks omitted)
(quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)); see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010)
(discussing the “special solicitude” courts
afford pro se litigants).