United States District Court, D. Delaware
B.B., by and through his Parents, CATHERINE B. JIMMY B., Plaintiff,
DELAWARE COLLEGE PREPARATORY ACADEMY, and DELAWARE DEPARTMENT OF EDUCATION, Defendants.
Wilmington this 8th day of May, 2017, having
reviewed the defendant's motion to dismiss and papers
submitted in connection therewith, the court issues its
decision as follows:
Introduction. Plaintiff B.B. (the "plaintiff'), by
and through his parents Catherine B. and Jimmy B. (the
"parents"), brought this action against defendants
Delaware College Preparatory Academy ("DCPA") and
the Delaware Department of Education (the "DDOE")
pursuant to the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400 et seq., and its
federal and state implementing regulations, including 14 Del.
Admin. C. § 922 et seq. (D.I. 1) Pending before the
court is the DDOE's motion to dismiss the complaint.
(D.I. 4) Because the court finds that the complaint is
untimely, it grants the motion.
Background. The IDEA requires states receiving federal
education funding to provide a free appropriate public
education ("FAPE") to disabled children.
Coleman v. Pottstown School Dist, 581 Fed.App'x
141, 146 (3d Cir. 2014); 20 U.S.C. § 1400(d)(1)(a). A
FAPE "consists of educational instruction specially
designed to meet the unique needs of the handicapped child,
supported by such services as are necessary to permit the
child to benefit from the instruction." Ridley Sch.
Dist. v. M.R., 680 F.3d 260, 268-69 (3d Cir. 2012)
(internal punctuation omitted). An individualized education
program ("IEP") is a written plan created by a team
that includes the child's parents and teachers. 20 U.S.C.
§ 1414(d)(1)(B). The IEP sets forth the package of
special educational and related services that are to be
provided to the disabled child. Carlisle Area Sch. Dist.
v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995); Geis
v. Bd. of Educ. of Parsippany-Troy Hills, Morris Cty.,
774 F.2d 575, 578 (3d Cir. 1985). The team must review the
IEP "not less than annually" and make revisions as
appropriate to ensure that the child is still receiving a
FAPE that meets his or her unique needs. 20 U.S.C. §
IDEA establishes several procedural safeguards for the
parents of a disabled child, including the right to present a
complaint "with respect to any matter relating to ...
the provision of a free appropriate public education to such
child." 20 U.S.C. § 1415(b)(6). If the school
district does not resolve the complaint to the parents'
satisfaction, the parents have the right to request an
impartial due process hearing held before a panel (the
"hearing panel") appointed by the Secretary of the
DDOE. 20 U.S.C. § 1415(f)(1); 14 Del. C. §§
3135. Absent two exceptions-neither of which plaintiff
invokes here-the parents must request a hearing "within
2 years of the date the parent[s]... knew or should have
known about the alleged action that forms the basis of the
complaint." 20 U.S.C. § 1415(f)(3)(C).
attended Red Clay Consolidated School District ("Red
Clay") at the West End Head Start preschool during the
2012-2013 school year. (D.I. 1 at ¶ 17) Red Clay
identified B.B. as a student eligible for and in need of
special education services. (Id. at ¶ 19) On
November 30, 2012, a team with Red Clay developed an IEP for
B.B. that included speech and language therapy six times per
month, for 30 minutes per session. (Id.) In August
2013, B.B. entered the kindergarten class at DCPA, a public
charter school. (Id. at ¶¶ 10, 20, 23) By
November 30, 2013, DCPA had not evaluated B.B. for special
education services, provided any special education services
to him, or ensured that the IEP team conducted its annual
review of the IEP as required. (Id. at ¶ 20)
Three months later, on February 20, 2014, B.B.'s mother,
Catherine B., sent a letter to the DCPA noting that the IEP
was over a year old and requesting that DCPA evaluate B.B.
(Id. at ¶ 22) The next day, February 21, 2014,
parents' counsel, on behalf of B.B., filed a due process
complaint (the "first complaint") alleging that
DCPA had denied B.B. a FAPE by failing to update the IEP and
failing to provide B.B. with special education services for
the 2013-2014 school year. (Id. at ¶ 23) The
first complaint requested that DCPA fund an outside
evaluation of B.B. to determine his academic levels and
speech and language therapy needs. (Id.) On February
24, 2014, DCPA sent parents, among other things, a copy of
the Delaware Procedural Safeguards Notice, which contains
information regarding the statute of limitations for filing a
due process complaint. (D.I. 4-1 at p. 12 ¶ 9) In May 2014,
parents voluntarily withdrew the first complaint in order to
seek the assistance of new legal counsel. (D.I. 1 at ¶
August 2014, parents filed a second due process complaint
(the "second complaint") against the DCPA.
(Id. at ¶ 27) No new IDEA violation was
alleged. (D.I. 4-1 at p. 10 ¶ 6) The second complaint
asked DCPA to fund an independent educational evaluation of
B.B. (D.I. 1 at¶27) In September 2014, parents withdrew
the second complaint, because B.B. had transferred to a new
December 2015, the Red Clay school board voted to revoke
DCPA's charter. (Id. at ¶ 28) Upon
parents' information and belief, DCPA has ceased
operations, but still maintains a legal existence.
(Id. at¶ 10) On April 1, 2016, parents filed a
third due process complaint (the "third
complaint"), which named as respondents both DCPA and
DDOE. (Id. at ¶ 29) The educational injuries
alleged in the third complaint are the same as those alleged
in the first complaint and second complaint. (D.I. 4-1 at 10
¶ 6) Nevertheless, the third complaint alleges that,
since DCPA had lost is charter, DDOE had become legally
responsible for providing a FAPE to B.B. (D.I. 1 at ¶ 3)
On June 16, 2016, the hearing panel issued a written opinion
and order dismissing the third complaint based on the
IDEA'S two-year statute of limitations and the doctrine
of latches. (Id. at ¶ 4; D.I. 4-1)
Standard of Review. Any party "aggrieved by the findings
and decision" of the hearing panel may appeal the
decision to a United States District Court. 20 U.S.C. §
1415(i). The district court applies a "modified de
novo" standard of review to the hearing panel's
decision. S.H. v. State-Operated Sch. Dist. of City of
Newark, 336 F.3d 260, 270 (3d Cir. 2003). This requires
the court to give "due weight" to the factual
findings of the administrative panel, meaning they are
considered prima facie correct. Id. Where the court
declines to adhere to those factual findings, it must explain
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
plaintiff must plead facts sufficient to "state a claim
to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
court's review is limited to the allegations in the
complaint, exhibits attached to the complaint, documents
incorporated by reference, items subject to judicial notice,
and matters of the public record. Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010); D.M. ex
rel. Ray v. Phila. Housing Auth., 613 Fed.App'x 187,
189 (3d Cir. 2015); El-Hewie v. Bergen Cty., 348
Fed.App'x 790, 794 (3d Cir. 2009) (explaining that the
"public record" includes administrative decisions).
The allegations in the complaint must be accepted as true,
and the plaintiff must be given the benefit of every
favorable inference to be drawn therefrom. Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011).
Discussion. As explained above, the IDEA contains a two-year
statute of limitations. 20 U.S.C. § 1415(f)(3)(C).
"[T]he limitations period of § 1415(f)(3)(C)
'begins to run once the plaintiff did discover or a
reasonably diligent plaintiff would have discovered the facts
constituting the violation-whichever comes first.'"
G.L. v. Ligonier Valley School Dist. Auth., 802 F.3d
601, 614 (3d Cir. 2015) (quoting Merck & Co. v.
Reynolds, 559 U.S. 633, 653 (2010)). The same injuries
form the basis of plaintiff's first complaint, second
complaint, and third complaint, i.e., that DCPA denied B.B. a
FAPE by failing to update the IEP in November 2013 and by
failing to provide B.B. with special education services for
the 2013-2014 school year. Parents should have known of the
alleged injuries to B.B. by November 30, 2013, when parents,
as part of the IEP team, were not asked to participate in any
meetings regarding an update to the IEP. Nevertheless,
parents actually knew of the alleged injuries by February
2014 when Catherine B. sent a letter to the DCPA asking it to
remedy those very same injuries. The third complaint was not
filed until April 1, 2016, more than two years later.
Accordingly, the third amended complaint must be dismissed as
untimely under the statute of limitations provided in the
Plaintiff does not dispute that the injuries alleged in the
third complaint are the same as the injuries alleged in his
other complaints or raised in the February 2014 letter.
Instead, plaintiff argues that dismissal is not warranted,
because a Rule 12(b)(6) motion to dismiss is an improper
procedural vehicle for considering a statute of limitations
defense. (D.I. 6 at ¶¶ 31-38) In particular,
plaintiff argues that this defense improperly relies on
matters extraneous to the pleadings. (Id.) The court
disagrees. The Third Circuit has made clear that a court may
grant a Rule 12(b)(6) motion to dismiss based on a statute of
limitations defense if it is apparent on the face of the
complaint that the action is time-barred. Singer v.
Bureau of Prof I & Occupational Affairs, 523
Fed.App'x 185, 186 (3d Cir. 2013). Moreover, "[a]s
with motions to dismiss generally, in considering a statute
of limitations defense, [the court] may consider not only the
allegations in the complaint but also exhibits attached to
the complaint and matters of public record." Gould
v. Borough, 615 Fed.App'x 112, 115 (3d. Cir. 2015).
the complaint itself alleges that parents complained to the
DCPA in February 2014 of the same injuries that form the
basis of the third complaint. Accordingly, it is apparent
from the face of the complaint that it is untimely, and the
court may properly dismiss the complaint at this stage of the
proceedings based on a statute of limitations defense.
Conclusion. For the foregoing reasons, DDOE's motion to
dismiss (D.I. 4) is granted, and the complaint is dismissed
with prejudice. DDOE has also moved to strike paragraph 14 of
plaintiff's unopposed motion for an extension of time to
serve process on DCPA. (D.I. 14) On December 12, 2016, the
court granted plaintiff's motion for extension of time,
but has not yet addressed DDOE's motion to strike.
Because the court has ...