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M.K. v. Prestige Academy Charter School

United States District Court, D. Delaware

June 26, 2017

M.K., by and through his mother, BARLOWE K., Plaintiff,

          Caitlin E. McAndrews, Esquire of McAndrews Law Offices, P.C., Wilmington, Delaware. Counsel for Plaintiff. Of Counsel: Michael E. Gehring, Esquire of McAndrews Law Offices, P.C., Berwyn, Pennsylvania.

          Marc S. Casarino, Esquire and Nicholas Wynn, Esquire of White and Williams LLP, Wilmington, Delaware. Counsel for Defendant Prestige Academy Charter School.

          Steven T. Margolin, Esquire and Brittany M. Giusini, Esquire of Greenberg Traurig LLP, Wilmington, Delaware. Counsel for Defendants Positive Change Academy, Pathways of Delaware, Pathways, and Molina Healthcare, Inc.


          ROBINS Senior District Judge


         Plaintiff M.K. (the "plaintiff"), by and through his mother, Barlowe K. ("mother"), brought this action against defendants Positive Change Academy, Pathways of Delaware, Pathways, Molina Healthcare, Inc. (collectively, the "Positive Change defendants"), and Prestige Academy Charter School ("Prestige, " and with the Positive Change defendants, "defendants"). (D.I. 1) The complaint alleges claims pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), the Americans with Disabilities Act, 42 U.S.C. §§ 12101, etseq. ("ADA"), and the common law of the State of Delaware. The court has subject matter jurisdiction over the federal law claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. Pending before the court are two motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6): one filed by Prestige and the second filed by the Positive Change defendants. (D.I. 4; D.I. 19)


         Plaintiff attended Prestige for his fifth through seventh grade years. (D.I. 1 ¶ 1) In seventh grade, Prestige placed plaintiff into Positive Change Academy ("Positive Change"). (Id.) The complaint alleges that Positive Change is owned and operated by Pathways of Delaware, a subsidiary of Pathways, which in turn is a subsidiary of Molina Healthcare, Inc. ("Molina").[1] (Id. at ¶¶ 6-8) On or about April 30, 2014, plaintiff's first and only day at Positive Change, his arm was injured while staff restrained him.[2] (Id.) In June 2014, Prestige evaluated plaintiff and found him to be an eligible disabled student under the Individuals with Disabilities Education Act ("IDEA"). (D.I. 1 ¶ 21)

         On November 24, 2015, plaintiff, represented by counsel, filed an administrative complaint against Prestige for failure to provide a free and appropriate public education ("FAPE") pursuant to the IDEA and corresponding Delaware law. (D.I. 5 at 2; D.I. 15 at ¶ 001-06) In that complaint, plaintiff also "reserve[d] the right to seek monetary damages under Section 504 and the [ADA]."[3] (D.I. 15 at ¶ 001) Prestige and plaintiff negotiated and executed a settlement agreement whereby plaintiff received monetary compensation for legitimate education expenses and attorney fees, but nothing for physical injuries. (Id. at A010-11) In exchange, plaintiff agreed to release all claims against Prestige "regarding the education of [plaintiff]" that "arise under, " among other specific statutes and regulations, the IDEA, Section 504, and the ADA. (Id. at A008-09) The agreement also provided that "notwithstanding" the above, plaintiff did not release "any claims ... against Prestige ... under any theory or cause of action, including any personal injury claim or cause of action seeking monetary damages ... arising from allegations that [plaintiff] suffered physical injuries and emotional and other damages resulting therefrom while attending Prestige or [Positive Change]...." (Id. at A009-10) The settlement agreement is governed by Delaware law. (Id. at A012)

         In February 2016, plaintiff', still represented by counsel, reached out to Molina regarding his claims against the Positive Change defendants. (D.I. 23 at 6) Plaintiff provided an overview of his potential claims and requested documents, which Molina never sent. (Id.) There were no other substantive discussions between the parties. (Id.) On April 27, 2016, a few days before the statute of limitations expired, plaintiff, represented by the same counsel, filed his complaint in the instant matter. The complaint has three counts. Count 1, against all defendants, alleges that plaintiff was denied equal benefits of his educational program in violation of Section 504 when Prestige placed him in Positive Change without an appropriate evaluation of his disabilities and Positive Change improperly restrained him. (D.I. 1 ¶¶ 36-40) Count 2, against all defendants, alleges that the same actions were a violation of the ADA. (Id. at ¶¶ 43-46) Count 3, against only the Positive Change defendants, alleges that they are liable for tortious conduct "in connection with the April 2014 restraint and its aftermath." (Id. at ¶¶ 47-32 [sic]) On June 5, 2016, plaintiff sent Prestige a request to waive service of process. (D.I. 5 at 4) Prestige did not respond to the request. (D.I. 14 at 3) Plaintiff never sent the Positive Change defendants a request to waive service. (D.I. 23 at 7) When plaintiff's deadline to perfect service of process expired on July 26, 2016, plaintiff had not served the complaint on Prestige or the Positive Change defendants. (Id.)

         On September 19, 2016, the court ordered plaintiff to provide a status report. (D.I. 3) A few days later, plaintiff again asked Prestige to waive service of process and Prestige responded that it would not. (D.I. 5 at 4; D.I. 14 at 7) Plaintiff served Prestige and Positive Change on September 26, 2016, Pathways of Delaware on September 27, 2016, and Molina on September 30, 2016, all two months after the deadline expired.(Id.; D.I. 20 at 4) In an attempt to explain why the complaint was not served before the deadline expired, plaintiff states:

It is Plaintiffs' [sic] counsel experience that, in the vast majority of federal cases, defendants or their attorneys agree to waive service in an attempt to eliminate the expense of hiring a process server. In cases where the attorney does not agree to accept service, it is Plaintiffs' counsel's experience that the attorney will notify Plaintiffs' counsel of this fact. In the present case, [Prestige's counsel] did not respond to the [initial] waiver of service forms.

(D.I. 14 at 7). Plaintiff does not provide an adequate explanation as to why request of waiver forms were never sent to the Positive Change defendants. Plaintiff simply claims it was "inadvertent[]" and "[d]ue to an internal oversight." (D.I. 23 at 7)

         III. ...

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