Shulse ex rel. Shulse v. W. New Eng. Univ.

Decision Date04 August 2020
Docket NumberCivil No. 3:19-CV-30146-KAR
PartiesMICHELLE SHULSE, ON BEHALF OF ERIC SHULSE, Plaintiff, v. WESTERN NEW ENGLAND UNIVERSITY, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE EXTRINSIC EVIDENCE SUBMITTED WITH DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS

(Dkt Nos. 7 and 9)

ROBERTSON, U.S.M.J.

Eric Shulse ("Shulse"), through his Guardian Michelle Shulse ("Plaintiff"), brings this action against the defendants Western New England University ("WNEU"), WNEU President Anthony S. Caprio ("Caprio"), and the Board of Trustees of WNEU ("the Board") (collectively, "Defendants") alleging federal claims under § 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act, as well as state law claims for negligence and breach of contract. Presently before the court is Defendants' motion to dismiss Plaintiff's complaint in its entirety, as well as Plaintiff's motion to strike an affidavit with exhibits that Defendants submitted in support of their motion (Dkt. Nos. 7 and 9). The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73 (Dkt. No. 11). For the following reasons, both the motion to strike and motion to dismiss are GRANTED in part and DENIED in part.

I. BACKGROUND
A. Scope of the Record

Before moving to Defendants' motion to dismiss, it is necessary to clarify the scope of the record. In conjunction with their motion to dismiss, Defendants submitted an affidavit from Dr. Jeanne Hart-Steffes, Ph.D., Vice President of Student Affairs and Dean of Students at WNEU, with twelve exhibits attached, including various paper and electronic correspondence (Ex. 1-2, 4-10), a no trespass order (Ex. 3), the WNEU Student Handbook (Ex. 11), and the 2016-2017 Parents' Guide to College (Ex. 12) (Dkt. No. 7-1). As to the twelve exhibits, Hart-Steffes avers that each is a true and accurate copy of a document Plaintiff referred to in the Complaint. Plaintiff has filed a motion to strike the affidavit and exhibits as not properly before the court on a motion to dismiss.

In deciding a Rule 12(b)(6) motion, a court is ordinarily limited to "consider[ing] only the 'facts alleged in the complaint, and exhibits attached thereto.'" Newman v. Lehman Bros. Holdings Inc., 901 F.3d 19, 25 (1st Cir. 2018) (quoting Freeman v. Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013)). "However, there are some 'narrow exceptions' in which a court may, if it chooses, consider extrinsic documents, such as 'documents the authenticity of which are not disputed by the parties; ... official public records; ... documents central to the plaintiff's claim; [and] ... documents sufficiently referred to in the complaint' without turning the 12(b)(6) motion into a motion for summary judgment." Id. (alteration in original) (quoting Freeman, 714 F.3d at 36). Defendants rely on the latter two exceptions. Regarding the Student Handbook and Parents' Guide, Defendants argue that the two documents are central to Plaintiff's breach of contract claim. Regarding the various pieces of correspondence and the no trespass order,Defendants argue that they are sufficiently referred to in the complaint insofar as they are referred to with specificity and Plaintiff relied on them in framing the complaint.

Defendants are correct that Plaintiff bases her breach of contract claim, at least in part, on the Student Handbook and the Parents' Guide, and, thus, the two documents are central to Plaintiff's claim. See Am. Mgmt. & Admin. Corp. v. Solid Rock Wall Sys., 186 F. Supp. 2d 69, 71 (D.P.R. 2002) (holding that contracts on which the plaintiffs based their allegations of breach of contract were central to the plaintiffs' claim). "Nevertheless, even if a document is 'central to the plaintiff's claim,' its authenticity must also be accepted by both parties in order for a court to consider it on a motion to dismiss." Pouliot v. Town of Fairfield, 184 F. Supp. 2d 38, 47 (D. Me. 2002) (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("When ... a complaint's factual allegations are expressly linked to - and admittedly dependent upon - a document (the authenticity of which is not challenged ), ... the trial court can review [the document] in deciding a motion to dismiss under Rule 12(b)(6).") (emphasis added)). See also Blackstone Realty LLC v. FDIC, 244 F.3d 193, 195 n.2 (1st Cir.2001); Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1015 (1st Cir.1988). Here, Plaintiff makes a blanket statement that she challenges the authenticity of "most, if not all," of the documents attached to Hart-Steffes' affidavit (Dkt. No. 9 at 3). However, Plaintiff did not specifically challenge the authenticity of the Student Handbook or Parents' Guide in her motion to strike or at oral argument on the motion. Because the Student Handbook and Parents' Guide are central to Plaintiff's breach of contract claim and she did not seriously challenge their authenticity, the court will deny Plaintiff's motion to strike as to these two documents and will consider them on the motion to dismiss. See Am. Mgmt. & Admin. Corp., 186 F. Supp. 2d at 71 (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins., 267 F.3d 30, 34 (1st Cir. 2001); Beddall, 137 F.3d at 16-17(considering contracts on which the plaintiffs based their breach of contract claim on a motion to dismiss).

The paper and electronic correspondence and no trespass order attached to Hart-Steffes' affidavit, the authenticity of which Plaintiff does challenge, do not stand on equal footing. They are not "central" to any of Plaintiff's claims, nor are they "sufficiently referenced" to warrant incorporation. Freeman, 714 F.3d at 36-37. "The First Circuit has made clear that 'mere mention of [a document] in the complaint does not amount to sufficient reference." Cosenza v. City of Worcester, Mass., 355 F. Supp. 3d 81, 87 (D. Mass. 2019) (citing Freeman, 714 F.3d at 36; Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985) ("[L]imited quotation does not constitute incorporation by reference.")). See also Fudge, 840 F.2d at 1015 (citing Goldman, 754 F.2d at 1066; Seidel v. Public Service Co. of N.H., 616 F. Supp. 1342, 1353 (D.N.H.1985)) ("Clearly not every document referred to in a complaint may be considered incorporated by reference and thus introduced by the moving party in support of a motion to dismiss."). Accordingly, Plaintiff's motion to strike is granted insofar as it relates to the correspondence and no trespass order attached to Hart-Steffes' affidavit, and the court will not consider them in deciding the motion to dismiss.

A final note - it is within a court's discretion to convert a Rule 12(b)(6) motion to dismiss into a motion for summary judgment pursuant to Rule 56 and consider materials outside the pleadings. Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). Alternatively, a court can "ignore supplementary materials submitted with the motion papers and determine the motion under the Rule 12(b)(6) standard." Id. Here, the court exercises its discretion to decline to convert the motion to dismiss into a motion for summary judgment at this early stage of the litigation before any discovery has taken place. See, e.g.,Crosby Legacy Co., LLC v. TechnipFMC PLC, No. CV 18-10814-MLW, 2019 WL 5588993, at *6 (D. Mass. Sept. 13, 2019) ("The wiser course is to allow the parties to engage in discovery, to see if the parties are able to narrow the factual disputes." (quoting Levecque v. Argo Mktg. Grp., Inc., No. 2:14-cv-00218-JAW, 2015 WL 10044258, at *7 (D. Me. Feb. 25, 2015)).

B. Facts1

Shulse is 24-year-old man who was born with a severe case of spina bifida leading to a host of serious complications (Compl. ¶ 7). He has a programmable shunt behind ventricles in his brain and is paraplegic with limited hand dexterity (Compl. ¶ 7). He relies on a wheelchair for mobility and requires personal care attendants ("PCAs") to help him with the activities of daily living (Compl. ¶ 7). Shulse is incontinent of both bladder and bowel; he must be catheterized every 3-4 waking hours and is on a bowel program (Compl. ¶ 7). He has a history of depression and is treated with medication (Compl. ¶ 7). Shulse is hypoglycemic and has suffered several incidents of low blood sugar (Compl. ¶ 7).

Shulse has designated Plaintiff as his health care agent (Compl. ¶ 8). Plaintiff was also Shulse's main PCA (Compl. ¶ 55). At all relevant times, Shulse had an appointed legal guardian (Compl. ¶¶ 15, 110, 124).

In April 2015, Shulse and Plaintiff attended the National Association for College Admission Counseling in Springfield, Massachusetts (Compl. ¶ 9). While there, they met with Christopher Wystepek, WNEU Director of Undergraduate Admissions and Athletic Liaison, who spoke to Shulse about the accessibility and willingness of the school to work with individualswith disabilities (Compl. ¶ 9). In October 2015, Eric applied for admission to WNEU as a test optional student, and he was accepted into the College of Business the following month (Compl. ¶¶ 10-11). Shulse quickly notified WNEU of his intention to enroll in Fall 2016 as a resident student (Compl. ¶ 12).

In March 2016, Tabitha Mancini ("Mancini"), with the WNEU Student Disability Services office ("SDS office"), assigned Shulse to the Commonwealth Hall to house himself and a PCA (Compl. ¶ 16). Shulse was not offered any other option for housing, and he was charged $345.00 per year in extra fees for his accessible dormitory (Compl. ¶¶ 16, 167). Nevertheless, the designated handicap accessible room Shulse was assigned was not large enough to accommodate an electric wheelchair, manual wheelchair, shower chair, and a PCA (Compl. ¶¶ 17, 167).

On August 25, 2016, Shulse moved into Room 151 in Commonwealth Hall (Compl. ¶ 23). Plaintiff immediately notified Mancini of a number of modifications that had been suggested by...

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