A.P. v. Allegro Sch., Inc.

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: KEVIN MCNULTY, U.S.D.J.
• Decision Date: 29 September 2017
• Docket Number: Civ. No. 17-281 (KM) (JBC)
• Citation: S.P. ex rel. A.P. v. Allegro Sch., Inc., Civ. No. 17-281 (KM) (JBC) (D. N.J. Sep 29, 2017)
• Parties: A.P., minor by her parent and guarding S.P. and S.P. individually, Plaintiffs, v. 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.

A.P., minor by her parent andguarding S.P. and S.P. individually, Plaintiffs, v. THE ALLEGRO SCHOOL, INC., DEBBY LEWINSON, RICHARDZANELLA, PRINCIPAL, NIAMAH GRAHAM, TEACHER, JOHN DOES 1-5,(AS YET UNIDENTIFIED INDIVIDUALS) AND ABC ENTITIES 1-5(AS YET UNIDENTIFIED ENTITIES), Defendants.

Civ. No. 17-281 (KM) (JBC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

September 29, 2017

OPINION

KEVIN MCNULTY, U.S.D.J.:

Plaintiff, 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.

Because 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.

I. Background and Procedural History¹

I summarize the allegations of the Complaint, which are accepted as true for the purposes of this motion to dismiss only.

A.P 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. ¶¶ 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. ¶ 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. ¶ 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. ¶¶ 2, 9.) She was a student there from July 9, 2007 to Dec. 10, 2010. (Id. ¶ 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. ¶¶ 3-5.)

Allegro 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. ¶ 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. ¶ 15.)

Initially, A.P. did well at Allegro. (Id. ¶ 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. ¶ 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. ¶ 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. ¶ 19.) At this observation, S.P. requested the relevant data and discovered that some data was not being collected. (Id. ¶ 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. ¶ 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. ¶ 25-27.)

On Oct. 12, 2010, another meeting was convened to discuss these issues. (Id. ¶ 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. ¶ 30.) Soon after this, A.P. was removed from the school and placed in a home-based program pending placement in anappropriate out-of-district program. (Id. ¶ 33.) She was subsequently placed at the Douglass Developmental Disabilities Center in New Brunswick. (Id. ¶ 34.)

On May 13, 2011, A.P. filed an administrative complaint against the District with the New Jersey Department of Education ("NJDOE").² 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 ¶ 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.

Nearly 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, 2015.

On Dec. 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.

A.P. 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.

A.P. 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.

II. Legal Analysis

a. Standard of Review

i. Rule 12(c) or 12(b)(6) motion

Allegro 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.

Rule 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).

Fed. R. Civ. P. 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to...