Evergreen School Dist. v. N.F.

• Decision Date: 04 May 2005
• Docket Number: No. 05-5067 FDB.,05-5067 FDB.
• Citation: 393 F.Supp.2d 1070
• Parties: EVERGREEN SCHOOL DISTRICT, Plaintiff, v. N.F., In the Matter of, Defendant.
• Court: U.S. District Court — Western District of Washington

393 F.Supp.2d 1070

EVERGREEN SCHOOL DISTRICT, Plaintiff, v. N.F., In the Matter of, Defendant.

No. 05-5067 FDB.

United States District Court, W.D. Washington.

May 4, 2005.

COPYRIGHT MATERIAL OMITTED

Lawrence B. Ransom, Tracy M Miller, Seattle, WA, for Plaintiff.

David B Girard, Seattle, WA, for Defendant.

ORDER GRANTING MOTION TO REMAND, AND DENYING REQUEST FOR ATTORNEY'S FEES

BURGESS, District Judge.

This matter is before the Court on the motion of Plaintiff Evergreen School District for an order to remand this action to the Superior Court of Washington for Clark County and awarding attorney's fees in bringing this motion, pursuant to 28 U.S.C. § 1447. Plaintiff sought to review a final administrative order pursuant to the Washington Administrative Procedures Act (RCW 34.05) and State special education law (RCW 28A.155); (WAC 392-172). Defendant parents removed the action to this Court under 28 U.S.C. § 1141(a) asserting the matter is a special education case arising under the Individuals with Disabilities Education Act 20 U.S.C. § 1400 et seq. ("IDEA").

Having considered the motion to remand, opposition, motion to remove, and the original petition for review, the Court finds for the reasons set forth herein, that Plaintiff's motion to remand this action is GRANTED, and Plaintiff's motion for attorney's fees and costs shall be DENIED.

I.

Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States. 28 U.S.C. § 1441(a). District courts have original jurisdiction over "all civil actions under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

A state-created cause of action can be deemed to arise under federal law (1) where federal law completely preempts state law, see Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Toumajian v. Frailey, 135 F.3d 648, 654-55 (9th Cir.1998); (2) where the claim is necessarily federal in character, See Brennan v. Southwest Airlines Co., 134 F.3d 1405, 1409 (9th Cir.1998); or (3) where the right to relief depends on the resolution of a substantial, disputed federal question, see Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 814, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986); Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir.1996).

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and actual expenses including attorney fees. 28 U.S.C. § 1447(c).

II.

N.F. is a student residing in the Evergreen School District whose educational program had been the subject of administrative proceedings before the Washington Office of Administrative Hearings for the Washington Superintendent of Public Instruction ("OSPI").

The parents requested a special education due process hearing, pursuant to the IDEA, 28 U.S.C. § 1415(f) and 34 C.F.R. §§ 300.507 through §§ 300.510 alleging that the Evergreen School District failed to provide the student with a free appropriate public education (FAPE), failed to provide adequate related services, and failed to give adequate assistive technology during all four years of N.F's tenure as a high school student at Heritage High School.

On December 13, 2004, By Findings of Fact, Conclusions of Law and Order the ALJ agreed that Plaintiff had denied the student his right to a FAPE and ordered by way of compensatory education, that Plaintiff would have to pay for a vocational education program until the student's completing or until he turns age 22, whichever occurs first. Plaintiff was also ordered to pay for an assistive technology evaluation and pay for an FM hearing device.

On January 10, 2005, Plaintiff filed an action in Clark County Superior Court as an appeal of the administrative order, pursuant to the APA, and RCW 34.05.542. In the petition for redress, Plaintiff alleged that the ALJ had erroneously interpreted and applied the state education law; the order was contrary to the evidence submitted in the administrative due process hearing; issues were improperly considered that were untimely or lacked jurisdiction; and the ALJ's decision was "arbitrary and capricious." Evergreen School District's Petition for Judicial Review, at 3.

Unaware of Plaintiff's appeal, on January 12, 2005, Defendant, through his parents, filed an original action (Cause Number C05-5023 FDB) under the IDEA seeking review of a portion of the same final administrative decision. Notice of Removal of Action, at 3. On January 27, 2005, N.F. timely removed Plaintiff's state court action to this Court pursuant to 28 U.S.C. § 1441, and § 1446, asserting federal question jurisdiction under 28 U.S.C. § 1331 and the jurisdictional provisions of the Individuals with Disabilities Education Act (20 U.S.C. § 1415 et seq.)("IDEA") where Defendant alleged that the Plaintiff's claims, "couched in terms" of state law seek to overturn the ALJ order which are based upon rights established and guaranteed by the IDEA and the regulations adopted thereunder.

Plaintiff contends that remand of this case to state court is mandated because removal was procedurally improper when Defendant failed to obtain consent of the state agency respondents. Plaintiff also maintains that it has not asserted a federal claim in its petition, and consequently, there is no federal question jurisdiction.

III.

A. Procedural Defect in Removal

Plaintiff maintains that the removal was improperly accomplished, as not all of the Defendants consented to the removal prior to the time at which the Notice of Removal was filed. See 28 U.S.C. § 1446(a); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.1998) ("All defendants must join a notice of removal"); Emrich v. Touche Ross & Co., 846 F.2d 1190 at n. 1. (9th Cir.1988); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir.1986).

Although Plaintiff served a notice of the petition for review to Defendant N.F., in addition to the Office of Administrative Hearings (OHA), the Office of the Superintendent of Public Instruction (OSPI), and the Office of the Attorney General (collectively "state agencies"), the original parties to the administrative hearings were merely N.F., as the petitioners, and the Evergreen School District, as the respondent. See Findings of Fact, Conclusions, of Law and Order at 1. The state agencies did not intervene, nor did they appear in any manner in any of the proceedings. Plaintiff does not seek any relief in its state court action of the state agencies, nor does there appear to be any grounds for the imposition of liability against them.

Contrarily, the state agencies are not proper defendants under § 1446, but rather are stakeholders to this action and as such, at best are merely nominal parties to the proceeding. See Pressman v. Meridian, 334 F.Supp.2d 1236, 1241 (9th Cir.2004) citing Hewitt at 1232-33 ("All defendants must join in a removal petition with the exception of nominal parties ... A defendant is a nominal party where his role is limited to that of a stakeholder or depositary"); Colman v. Shimer, 163 F.Supp. 347, 350 (W.D.Mich.1958) ("This excludes from consideration a resident defendant ... whose relation to the suit is merely incidental and to whom it is of no moment whether the one or the other side of the controversy succeeds."). Accordingly, Defendant was not required to have the consent of the Office of Administrative Hearings, the Attorney General's Office or the OSPI before removing the action to this Court.

B. Federal Question Jurisdiction

Artful pleading v. well-plead doctrine

In determining whether the complaint presents a federal question, we begin our analysis with a fundamental tenet of federal jurisdiction — the "well pleaded complaint rule". Generally, "the presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A case may not be removed to federal court on the basis of a federal defense, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Franchise Tax Bd. of California v. Construction Laborers Vacation Trust for S. California, 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

On its face, Plaintiff's complaint does not state a claim that "arises under" federal law. Washington law creates the causes of action for special education and review of final administrative hearings under which Plaintiff has chosen to seek relief. See RCW 28A.155; RCW 34.05; RCW 34.12; 34 CFR 300 et. seq.; and WAC 392-172. Upon careful review of Plaintiff's petition, Plaintiff did not state a claim under the IDEA and does not make any reference to the constitution or the federal act. As the master of the complaint, a plaintiff may defeat removal by choosing not to plead independent federal claims. See Caterpillar, 482 U.S. at 399, 107 S.Ct. 2425; Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 975 (9th Cir.1993).

However, under the artful pleading rule "a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. 2841. Defendant maintains that all of the issues brought before the ALJ for consideration were based upon rights provided to N.F. by the IDEA, and asserts that the petition for review was artfully plead in an attempt to avoid any reference to the federal law that governs N.F.'s claims.

The rights provided to N.F. — whether he was denied a FAPE, whether he was educated in...