UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PETER AVOLETTA, ET AL. :
v. : No. 3:07CV841(AHN)
CITY OF TORRINGTON, ET AL. :
RULING ON PENDING MOTIONS
The plaintiffs, Joanne Avoletta (“Mrs. Avoletta”) and her
two sons, Peter Avoletta (“Peter”) and Matthew Avoletta
(“Matthew”), bring this action asserting claims under (1) the
Connecticut Constitution, (2) the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1485, as amended by
IDEIA, and Connecticut statutes and regulations, (3) Section 504
of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, (4)
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq., (5) the Civil Rights Act, 42 U.S.C. § 1983, as well as
state-law claims for (6) intentional spoilation of evidence, (7)
fraudulent concealment of evidence, and (8) negligent infliction
of emotional distress.
The defendants are the City of Torrington (“City”), the
Torrington Board of Education (“Board”), and the following
persons in both their individual and official capacities: Paul
Cavagnero, Chairman of the Torrington Board of Education, Dr.
Edward Kavle, the medical advisor for the Torrington public
schools, Veronica LeDuc, the Principal of the Torrington High
School, Judith Babcock, the Director of Student Services for the
Torrington public schools, Dr. Joann Brogis, the former guidance
counselor for the Torrington public schools, and David Bascetta,
the director of facilities for the Torrington public schools.
Pending before the court are the defendants' motions to
dismiss [docs. ## 45 & 46] pursuant to Fed. R. Civ. P. 12(b)(1)
and (6). The defendants assert that the court does not have
subject matter jurisdiction because the plaintiffs failed to
exhaust their administrative remedies under the IDEA. The
defendants also assert numerous grounds to dismiss the complaint
for failure to state a claim on which relief may be granted.
Also pending is the plaintiffs' motion to remand [doc. # 20].
For the following reasons, the motions to dismiss are
GRANTED in part and DENIED in part and the motion to remand is
also GRANTED in part and DENIED in part.
FACTS
The gist of the plaintiffs' claims is that the defendants
failed to provide Peter and Matthew a free appropriate public
education (“FAPE”) in a safe school setting without
discrimination due to disabilities that were caused by the
defendants' failure to properly maintain the Torrington public
school buildings. They assert that the defendants' negligent
failure to properly maintain the middle school caused it to
sustain water damage from leaks in the roof, mold and bacterial
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growth, high levels of moisture in the indoor air, and poor
circulation of air. They contend that the defendants' negligent
failure to properly maintain the high school resulted in asbestos
problems, leaks in the roof and windows, minimal ventilation
rates, and broken air handlers. According to the plaintiffs,
these conditions caused Peter to suffer irreversible lung disease
and Matthew to suffer moderate to severe chronic allergies and
asthma, thereby rendering both of them disabled and requiring
special education services. The defendants failed to provide
those services and thereby deprived both children of their rights
to a FAPE.
The plaintiffs allege that beginning with the 2003-2004
school year and continuing through the 2005-2006 school year,
they repeatedly invoked their rights pursuant to the IDEA and
Connecticut and federal statutes by requesting the defendants
hold planning and placement team (“PPT”) meetings for both
children. The defendants, however, refused some of their
requests for PPT meetings, refused to identify both children as
eligible under the IDEA for special education and related
services due to their health impairments, and directed them to
proceed under Section 504 rather than under the IDEA.
More specifically, Peter attended Torrington public schools
from August 1999 through the end of the 2002-2003 school year.
After he was diagnosed in 2003 with irreversible lung disease,
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his physician advised him to remain at home for the 2003-2004
school year. In August 2003 Mrs. Avoletta asked the Board to
hold a PPT meeting to identify Peter under the IDEA as “other
health impaired” and eligible for special services and she also
requested a Section 504 meeting. The Board held meetings only
under Section 504, not under the IDEA. In October 2003 the Board
identified Peter as eligible for accommodations pursuant to
Section 504 and provided him with homebound instruction for the
2003-2004 school year.
Mrs. Avoletta requested the Board place Peter in an out of
district public or private school for the 2004-2005 school year.
When the defendants refused, Mrs. Avoletta unilaterally placed
him in a private high school in Waterbury, Connecticut.
From October 2003 to October 2005 the Board held numerous
Section 504 meetings regarding Peter's education plan. Then, in
October 2005 the Board denied the request to place Peter in an
out of district school. In November 2005 Mrs. Avoletta requested
a Section 504 due process hearing for Peter. The hearing was
scheduled for April 2006, but it was cancelled by Mrs. Avoletta.
In addition, from November 2003 to May 2004 the Board held
four PPT meetings regarding Peter's eligibility under the IDEA.
The PPT process ended in May 2004 when the Board denied Mrs.
Avoletta's request to identify Peter as eligible for special
services under the IDEA.
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During this time period Mrs. Avoletta unilaterally continued
to send Peter to private school and the Board denied her repeated
requests for reimbursement of his private school tuition and
associated costs. Peter graduated from that private high school
in June 2006 and now attends college.
Matthew was 15 at the time this action was commenced. He
attended Torrington public schools from August 1997 to June 2003.
In the spring of 2003 Mrs. Avoletta requested the Board hold a
PPT meeting to identify him as other health impaired and
requiring special services under the IDEA and Section 504. The
Board denied her request. In August 2003, on the advice of
Matthew's physician, Mrs. Avoletta notified the Board that she
would not allow Matthew to attend Torrington Middle School and
that she was placing him in a private school. The Board then
held the first of several Section 504 meetings to consider
whether he was eligible for accommodations as a child with a
disability. After the Board determined that he was not eligible
under Section 504, Mrs. Avoletta unilaterally placed him in a
private school in Waterbury. From that time until October 2005
the Board held seven additional Section 504 meetings, but it
continued to find that Matthew was not eligible for
accommodations under Section 504 and refused to place him in an
out of district public or private school.
In November 2005 Mrs. Avoletta requested the defendants hold
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a due process hearing under Section 504 for Matthew. The hearing
was held and on April 3, 2006 the hearing officer found that he
was not eligible for accommodations under Section 504.
During this same time period, Mrs. Avoletta also requested
PPT meetings to have Matthew identified under the IDEA as other
health impaired. The Board denied all but three of her requests
for PPT meetings. The last PPT meeting was held in September
2004 at which time the Board refused to identify Matthew as
eligible for special education under the IDEA and directed Mrs.
Avoletta to pursue her rights under Section 504.
Mrs. Avoletta did not ask the defendants to place Matthew in
an out of district school for the 2006-2007 school year or to
identify him as eligible for special accommodations because doing
so would have been futile.
Mrs. Avoletta continued to unilaterally send Matthew to
private school. She requested the defendants reimburse her for
Matthew's tuition and costs, but the defendants refused her
requests.
In addition to pursuing these claims with the Board, in
September 2004 Mrs. Avoletta filed a discrimination complaint
against the defendants with the United States Office of Civil
Rights, the agency responsible for enforcing Section 504 and the
ADA, regarding Peter's treatment. In October 2005, the Office
found that there was insufficient evidence to prove that the
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Board had failed to comply with the requirements of Section 504
requiring special education and related services to meet Peter's
needs. The office declined Mrs. Avoletta's request to reconsider
its decision in April 2006.
In March 2006 Mrs. Avoletta filed a discrimination complaint
with the United States Office of Civil Rights regarding Matthew's
treatment. In July 2006 the Office determined that it was
“unable to accept any of the complaint issues alleging
discrimination on the basis of disability for investigation.”
The plaintiffs allege that they exhausted their
administrative remedies for Peter and Matthew pursuant to the
IDEA and Section 504 for all relevant school years.
This action was filed in May 2007 in the Connecticut
Superior Court and was removed by the defendants to this court.
STANDARD OF REVIEW
In cases such as this, where a Rule 12(b)(1) motion to
dismiss based on lack of subject matter jurisdiction is combined
with a Rule 12(b)(6) motion, the court must decide the
jurisdictional question first because disposition of a Rule
12(b)(6) motion is a decision on the merits and thus an exercise
of jurisdiction. Rhulen Agency, Inc. v. Alabama Ins. Guar.
Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (noting that a motion to
dismiss for failure to state a claim may be decided only after
finding subject matter jurisdiction); Magee v. Nassau County Med.
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Ctr., 27 F. Supp 2d 154, 158 (E.D.N.Y. 1998).
To resolve disputed issues of fact relating to subject
matter jurisdiction in a Rule 12(b)(1) motion, the court may
consider evidence beyond the pleadings, including affidavits and
other evidence submitted by the parties. Flores v. Southern Peru
Copper Corp., 414 F.3d 233, 235 n.30 (2d Cir. 2003).
The plaintiff, as the party asserting subject matter
jurisdiction, has the burden of establishing that it exists by a
preponderance of the evidence. Malik v. Meissner, 82 F.3d 560,
562 (2d Cir. 1996).
DISCUSSION
The defendants move pursuant to Fed. R. Civ. P. 12(b)(1) to
dismiss the plaintiffs' claims under the Connecticut Constitution
(count one), the IDEA and Connecticut statutes and regulations
(count two), Section 504 (count three),1 the ADA (count four),2
1 Section 504 prohibits discrimination on the basis of a disability “under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. Under the federal regulations that implement Section 504, the denial of a FAPE to a disabled student can constitute disability discrimination. 34 C.F.R. § 104.33(a); J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70-71 (2d Cir. 2000). While Section 504 addresses, inter alia, discrimination against disabled students, the IDEA addresses inappropriate special education services. See S.W. v. Warren, 528 F. Supp 2d 282, 289 (S.D.N.Y. 2007). 2 Title II of the ADA extends Section 504's prohibition against discrimination on the basis of disability to all programs and services provided by state and local governments. The enforcement provision of the ADA incorporates the enforcement provision of the Rehabilitation Act and both acts are interpreted uniformly. 28 C.F.R. § 35.103.
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42 U.S.C. § 1983 (count five), as well as the claim for negligent
infliction of emotional distress (count eight). They maintain
that all of these claims relate to the alleged denial of Peter's
and Matthew's right to a free appropriate public education and,
as such, are subject to IDEA's exhaustion requirements. They
claim that the plaintiffs' failure to exhaust the IDEA's
administrative remedies deprives the court of subject matter
jurisdiction.3
The defendants also move pursuant to Rule 12(b)(6) to
dismiss the plaintiffs' claims on the grounds that they are
barred by the doctrine of res judicata and assert numerous
arguments supporting dismissal of all the claims, including the
state-law claims, on grounds of, inter alia, sovereign and
municipal immunity.
Because the defendants have raised the issue of the court's
3 The plaintiffs contend that their claim for denial of a FAPE under the state constitution (count one) is not subject to exhaustion. However, it is well settled that a plaintiff cannot escape the IDEA's exhaustion requirement by artfully drafting a complaint avoiding the IDEA where the relief sought is available under the IDEA. E.g., Hope v. Cortines, 872 F. Supp. 14, 17 (E.D.N.Y. 1995), aff'd, 69 F.3d 687 (2d Cir. 1995); DiStiso v. Town of Wolcott, No. 3:05cv1910(PCD), 2006 WL 3355174, at *4 (D. Conn. Nov. 17, 2006). Moreover, it appears that a plaintiff does not have a private right of action under the Connecticut Constitution for injuries for which the legislature has provided a reasonably adequate statutory remedy. Kelley Prop. Dev. Inc, v. Town of Lebanon, 226 Conn. 314, 339 (1993). For this reason, the plaintiffs' claims under the Connecticut Constitution could not be sustained even if they had exhausted their administrative remedies under the IDEA.
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subject matter jurisdiction, that issue must be decided first.
I. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction
The defendants maintain that the court does not have subject
matter jurisdiction over the claims alleging denial of a FAPE
because the plaintiffs did not exhaust the IDEA's administrative
remedies. The court agrees.
Under the IDEA, states that receive federal funds must
provide disabled children a FAPE tailored to the unique needs of
each particular child in the least restrictive appropriate
environment. 20 U.S.C. §§ 1401(8), 1412(a); Polera v. Bd. of
Educ. of Newburgh, 288 F.3d 478, 481 (2d Cir. 2002). The IDEA
gives parents of disabled children extensive procedural and
substantive safeguards to ensure that their children receive a
FAPE. 20 U.S.C. § 1415. One of those safeguards is the
requirement that the educational needs of a disabled child be set
forth at least annually in an individualized education program
(“IEP”) developed by a Planning and Placement Team (“PPT”)
composed of, inter alia, parents, teachers, and school officials.
20 U.S.C. §§ 1414(d)(4)(A)(1) & (1)(B). If a dispute arises
between a school board and a parent as to a child's IEP, either
party may request an impartial due process hearing conducted by
the state educational agency. 20 U.S.C. § 1415(b)(6).
Thereafter, either party may bring a civil action in state or
federal court for judicial review of the findings and decision of
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the due process hearing. 20 U.S.C. § 1414(i)(2)(A). But as the
IDEA statute clearly states, before a party may file a civil
action under the IDEA, the Constitution, the ADA, Section 504, or
other laws protecting the rights of children with disabilities,
the statutorily required impartial due process hearing “shall be
exhausted.” 20 U.S.C. § 1415(l).
To comply with the IDEA, Connecticut has enacted a series of
statutes and regulations governing the provision of a FAPE to
children who require special education and related services and
the administrative process that must be followed. Conn. Gen.
Stat. § 10-76(a), et seq.; Conn. Agency Regs. § 10-76a-1, et seq.
Under these statutes and regulations, the local board of
education must accept and process a referral from, inter alia, a
child's parent to determine a child's eligibility for special
education and related services. Each child who has been referred
for such a determination must be evaluated by a PPT. If the PPT
determines that the child is eligible for special education and
related services, the PPT must develop an IEP. Parents who are
not satisfied with the IEP may request, in writing, a hearing by
an impartial hearing officer regarding the proposal or refusal to
initiate or change the identification, evaluation, or educational
placement of the child or the provision of a FAPE to the child.
The hearing officer must issue written findings of fact and
conclusions of law. The decision may be appealed to federal or
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state court.
Unless these administrative procedures are exhausted, an
aggrieved parent may not seek redress in federal or state court
to enforce any rights, procedures, and remedies available under,
inter alia, the IDEA, the ADA, Section 504, and 42 U.S.C. § 1983,
even though these statutes do not have an exhaustion requirement
for claims unrelated to the IDEA. E.g., J.S. ex rel. N.S. v.
Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004); Polera, 288
F.3d at 480. As the Second Circuit explained, the IDEA's
exhaustion requirement “was intended to channel disputes related
to the education of disabled children into an administrative
process that could apply administrators' expertise in the area
and promptly resolve grievances,” “prevents courts from
undermining the administrative process,” and “permits an agency
to bring its expertise to bear on a problem as well as to correct
its own mistakes.” Polera, 288 F.3d at 487 (quoting Heldman ex
rel. T.H. v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992)).
A. The Administrative Process in this Case
The defendants assert that the plaintiffs never requested a
due process hearing as required by the IDEA for either Matthew or
Peter regarding their eligibility determinations, evaluations,
out of district placement, or the alleged failure to provide a
FAPE. The plaintiffs do not dispute this assertion, but claim
that they exhausted their IDEA administrative remedies “to the
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fullest extent possible before the defendants directed [them] to
proceed under Section 504 and [they] pursued their Section 504
remedies to the conclusion of a due process hearing prior to
seeking redress in court.” According to the plaintiffs, the
administrative process through which they asserted their rights
under Section 504 satisfies the IDEA's exhaustion requirements,
especially because the defendants directed them to proceed under
Section 504. They also claim that their efforts to obtain
redress by filing complaints with the Connecticut Office of
Protection & Advocacy for Disabled Persons and the United States
Office of Civil Rights also satisfies IDEA's exhaustion
requirements. The court disagrees.
As noted, there is no dispute that Mrs. Avoletta never
requested due process hearings under the IDEA for either Peter or
Matthew: she did not request an IDEA due process hearing after
the defendants refused her numerous requests to conduct PPT
meetings to identify Peter and Matthew as other health impaired
and eligible for special education under the IDEA; nor did she
request an IDEA due process hearing after the defendants
eventually held PPT meetings for Peter and Matthew, but
determined that they were not disabled under the IDEA and not
eligible for special services. Because she never requested a due
process hearing under the IDEA to challenge any of the
defendants' actions or determinations, she did not exhaust the
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IDEA's administrative remedies.
Moreover, Mrs. Avoletta's failure to request due process
hearings is not excused by her efforts to obtain accommodations
for Peter and Matthew under Section 504, or by requesting Section
504 “due process hearings” to challenge the defendants'
determination that Peter and Matthew were not disabled, or by
participating in one Section 504 “due process hearing” for
Matthew. And her failure to request due process hearings under
the IDEA is also not excused by the complaints she filed with the
Connecticut educational agencies and the United States Office of
Civil Rights against the City and Board alleging discrimination
under Section 504.
It is the exhaustion of the IDEA's administrative
procedures, not procedures under Section 504, that is the
prerequisite for bringing an action in federal or state court
alleging the denial of a FAPE under the IDEA, Section 504, the
ADA, Section 1983, or any other cause of action. Myslow v. New
Milford Sch. Dist., 3:03cv496(MRK), 2006 WL 473735, at *10 n.2
(D. Conn. Feb. 28, 2006); 20 U.S.C. § 1415(l).
Indeed, the plain language of the IDEA and Second Circuit
case law dictate that IDEA exhaustion is required whenever a
plaintiff seeks relief under any federal or state law if the
relief sought is the same as the relief that would be available
under the IDEA. 20 U.S.C. § 1415(l); Polera, 288 F.3d at 483;
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Hope v. Cortines, 872 F. Supp. at 21. Thus, because the relief
the plaintiffs seek under Section 504, the ADA, the Connecticut
Constitution and statutes, and Section 1983, is relief that is
also available under the IDEA, they were required to exhaust
their administrative remedies under the IDEA even though the
other causes of action do not require exhaustion for claims
unrelated to the IDEA. See Polera, 288 F.3d at 488.
The plaintiffs' failure to comply with the IDEA's due
process requirement not only deprived the defendants of an
opportunity in the first instance to correct and remedy any
shortcomings in the educational programs for Peter and Matthew
and prevented the full exploration of technical and other issues
by educational experts, it also deprived this court of the
considered opinions and factual findings of educational experts
as well as an administrative record, all of which the court would
need to review and consider when determining whether the
plaintiffs' rights were violated. See Polera, 288 F.3d at 486-88
(quoting Heldman ex rel. v. Sobol, 962 F.2d 148, 159 (2d Cir.
1992)); Garro v. State of Conn., 23 F.3d 734, 738 (2d Cir. 1994).
It stands to reason that because the IDEA and Section 504 address
different injuries and require different proof, J.D. ex rel. J.D.
v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000) (citing
Monahan v. State of Nebraska, 687 F.2d 1164, 1170-71 (8th Cir.
1982)) (noting that a court's conclusion that an incorrect
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evaluation was made and a different placement was required under
the IDEA is not the same as a conclusion that a disabled child,
either because of bad faith or gross misjudgment, was
discriminated against solely by reason of his disability in
violation of Section 504), an administrative record of a Section
504 proceeding would not provide an adequate record for the court
to review in determining whether the defendants incorrectly
evaluated Peter and Matthew and denied them a FAPE.
In sum, because the plaintiffs failed to request due process
hearings as required by IDEA, they did not exhaust their
administrative remedies.
B. Futility
The plaintiffs' claim that it would have been futile for
them to seek relief through the IDEA administrative process is
without merit. Although the plaintiffs correctly assert that the
failure to exhaust the IDEA's administrative remedies may be
excused where doing so would have been futile, e.g., Hope v.
Cortines, 872 F. Supp. at 22, futility means more than a failure
to provide services. Polera, 288 F.3d at 409.
To show futility, a plaintiff must demonstrate that
“adequate remedies are not reasonably available or that the
wrongs alleged could not or would not have been corrected by
resort to the administrative hearing process.” J.G. v. Bd. of
Educ. of Rochester City Sch. Dist., 830 F.2d 444, 447 (2d Cir.
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1987). In other words, the exhaustion requirement is excused by
the futility doctrine in cases where pursuing the IDEA's
administrative process would leave the party without an adequate
remedy. Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d
198, 205 (2d Cir. 2007). An adequate remedy means relief for
“the events, conditions, or consequences of which the person
complains, [even if] not necessarily relief of the kind the
person prefers.” Polera, 288 F.3d at 488. Thus, if the IDEA
administrative process offers a remedy, even if not the preferred
remedy, for the ills of which a plaintiff complains, the
plaintiff may not ignore the administrative process then later
sue under a different statute or theory. Id. at 483. The burden
of demonstrating futility rests with the party seeking to avoid
the exhaustion requirement. Id. at 489 n.8.
Here, unlike cases where the Second Circuit has held that
the futility exception is applicable, this case does not involve
systemic violations that were not directed at any individual
child, nor is it one in which a hearing officer was powerless to
correct the alleged violations. See J.S. ex rel N.S. v. Attica
Cent. Schs., 386 F.3d at 113 (citing numerous cases where
exhaustion was futile in that the “problems could not have been
remedied by administrative bodies because the framework and
procedures for assessing and placing students in appropriate
educational programs were at issue, or because the nature and
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volume of complaints were incapable of correction by the
administrative hearing process”).
To the contrary, the dispute here -- the defendants' refusal
to identify Peter and Matthew as disabled and to provide them
with special education services -- is precisely the kind of
dispute to which the IDEA's administrative scheme is addressed
and is one that a due process hearing officer had the power to
remedy by providing the relief sought –- out of district
placement –- if the hearing officer determined that the children
were eligible for such placement.
The fact that the plaintiffs believed that the relief they
sought was not likely to be awarded at the administrative level
does not mean that resort to the IDEA's administrative procedures
would have been futile. As the Second Circuit has noted, the
futility exception does not apply where a plaintiff merely
chooses not to pursue the remedies that were available at the
administrative level. Polera, 288 F.3d at 490. Disabled
students “should not be permitted to 'sit on' live claims and
spurn the administrative processes that could provide the
educational services they seek, then later sue for damages.” Id.
Condoning such conduct would frustrate the IDEA's carefully
crafted process for the prompt resolution of grievances. . . .”
Id.
Thus, where, as here, there was a fully effective
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administrative remedy available, but was not pursued, the
futility exception does not apply. Id.
C. Waiver
There is also no merit to the plaintiffs' conclusory
assertion that the defendants' conduct in continuously rejecting
the plaintiffs' efforts to proceed under the IDEA and directing
them to proceed under Section 504 constituted a waiver of the
exhaustion requirement. Even assuming that the plaintiffs had
sustained their burden of providing evidence to support a waiver,
this defense has not been recognized in the Second Circuit.
While the Seventh Circuit has held that failure to exhaust
under the IDEA is not a jurisdictional bar, but is only an
affirmative defense that is subject to waiver, Mosely v. Bd. of
Educ. of City of Chicago, 434 F.3d 527, 532-33 (7th Cir. 2006),
the Second Circuit has “yet to reach a clear conclusion on this
question.” Paese v. Hartford Life & Accident Ins. Co., 449 F.3d
435, 444 n.2 (2d Cir. 2006). In fact, in Paese and more recently
in Coleman v. Newburgh Enlarged City School District, 503 F.3d
198 (2d Cir. 2007), the Second Circuit acknowledged that it has
routinely held that the IDEA's exhaustion requirement is a
jurisdictional but, while it has also referred to the IDEA's
exhaustion requirement as a “non-exhaustion defense,” it has
never decided whether the IDEA's exhaustion requirement was
subject to waiver. Paese, 449 F.3d at 444 n.2; Coleman, 503 F.3d
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at 203-04. Nonetheless, the court in Coleman, as it did in
Paese, concluded once again that it did not need to decide the
issue because a waiver defense was not tenable in the case before
it. 503 F.3d at 203-04; see also Handberry v. Thompson, 446 F.3d
52, 60 (2d Cir. 2006) (on rehearing) (noting that it had not yet
ruled on whether the IDEA's exhaustion requirement is subject to
waiver, but noting its holding that “absent an applicable
exception, a plaintiffs' failure to exhaust IDEA's administrative
remedies deprived the court of subject matter jurisdiction”).
Until the Second Circuit rules otherwise, the law in this
circuit is that failure to exhaust is a jurisdictional bar, not
an affirmative defense that is subject to waiver. Accordingly,
the plaintiffs' waiver claim is unavailing.
Because the plaintiffs did not pursue or exhaust the
administrative remedies required by the IDEA and because there is
no applicable exception to the exhaustion requirement, this court
does not have subject matter jurisdiction to rule on the
appropriateness of the Board's decision that Peter and Matthew
were not disabled and were not entitled to placement in an out of
district school. See, e.g., Handberry v. Thompson, 446 F.3d at
60.
Accordingly, the defendants' Rule 12(b)(1) motions to
dismiss the plaintiffs' claims under the Connecticut
Constitution, Connecticut statutes and regulations, the IDEA, the
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ADA, Section 504, 42 U.S.C. § 1983, and for negligent infliction
of emotional distress4 as asserted in counts one, two, three,
four and eight of the complaint, are granted.
II. Rule 12(b)(6) Motion to Dismiss
The defendants have also asserted numerous grounds to
dismiss the plaintiffs' state-law claims under Rule 12(b)(6).
Although the court has supplemental jurisdiction over these
remaining claims under 28 U.S.C. 1367, the court, as discussed
infra, declines to exercise that jurisdiction now that the
plaintiffs' federal claims have been dismissed.
Accordingly, the court will not consider or decide the
defendants' claims in support of their Rule 12(b)(6) motion to
dismiss and denies this portion of the motion without prejudice.
III. Motion to Remand
The plaintiffs have moved pursuant to 28 U.S.C. § 1447 to
remand this case to the Connecticut Superior Court. They assert
that this court lacks subject matter jurisdiction over their
state constitutional claims because they raise novel and complex
4 The negligent infliction of emotional distress claim asserted in count eight is nothing more than a reformulation of the plaintiffs' statutory claims (i.e., the plaintiffs allege that the defendants “negligently inflicted emotional distress on the plaintiffs by failing to provide a free appropriate public education to Peter and Matthew in a safe school setting without discrimination against them due to their disabilities during all relevant years”) and thus is also subject to the IDEA's exhaustion requirement. See DiStiso v. Town of Wolcott, 2006 WL 3355174, at * 4; 20 U.S.C. § 1415(l).
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issues of state law and they substantially predominate over the
federal claims. There is no merit to this assertion.
By virtue of the four federal causes of action alleged in
the complaint, i.e., the IDEA, Section 504, the ADA, and 42
U.S.C. § 1983, this court has original jurisdiction pursuant to
28 U.S.C. §§ 1331 and 1343(a)(3) and the action was properly
removed under 28 U.S.C. § 1441(a). Accordingly, remand is not
authorized under 28 U.S.C. § 1447. Indeed, because this court
has original jurisdiction over the federal claims, it has no
discretion to remand them. Nelson v. City of Rochester, 492 F.
Supp 2d 282, 286 (W.D.N.Y. 2007) (citing Green v. Ameritrade,
Inc., 279 F.3d 590, 596 (8th Cir. 2002)); see also 16 Moore's
Federal Practice § 107.14[6][b]. Further, it would not be
appropriate to remand the state-law claims even if the plaintiffs
had moved under 28 U.S.C. § 1441(c) because those claims are not
separate and independent from the federal claims. See Hinson v.
Norwest Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001)
(holding that where the state and federal claims are not separate
and independent from each other, § 1441(c) simply has no bearing
on the issue of remand). In fact, the federal and state-law
claims alleged in the complaint arise out of the same facts so
the court has supplemental jurisdiction over the state-law claims
under 28 U.S.C. § 1367 and removal of the entire action was
proper. Nelson v. City of Rochester, 492 F. Supp 2d at 286.
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Thus, the plaintiffs' motion to remand the action is denied.
Nonetheless, to the extent the plaintiffs' motion can be
construed as asking the court to decline supplemental
jurisdiction and remand the state-law claims, the motion is
granted. In fact, because the court has dismissed all claims
over which it had original jurisdiction, it must reassess its
jurisdiction. Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d
Cir. 2004) (“[O]ur Court has held, as a general proposition, that
‘if [all] federal claims are dismissed before trial ... the state
claims should be dismissed as well.’”) (quoting Castellano v. Bd.
of Trustees, 937 F.2d 752, 758 (2d Cir. 1991)).
When all of a plaintiffs' federal claims have been
dismissed, a district court can decline to exercise supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. §
1367(c) if it determines that exercising supplemental
jurisdiction would not promote economy, convenience, fairness,
and comity. Itar-Tass Russian News Agency v. Russian Kurier,
Inc., 140 F.3d 442, 446 (2d Cir. 1998). In this case, permitting
the parties to litigate the remaining state-law claims in this
court now that all the federal claims have been dismissed would
not promote economy, convenience, fairness, and comity. Indeed,
doing so would amount to what has been described as “allowing a
federal tail to wag what is in substance a state dog.” Borough
of West Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir. 1995).
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Moreover, the interests of federalism and comity favor litigating
the state-law issues, especially those involving sovereign and
municipal immunity, in state court. See Valencia ex rel. Franco
v. Lee, 316 F.3d 299, 306 (2d Cir. 2003); Marcus v. AT&T Corp.,
138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal
claims are dismissed before trial, the state claims should be
dismissed as well.”).
Accordingly, the court declines to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c) and remands the
remaining state-law claims to the Connecticut Superior Court.
CONCLUSION
For the foregoing reasons, the defendants' motions to
dismiss [docs. ## 45 & 46] are GRANTED in part and DENIED in
part. In so far as the motions seek to dismiss the plaintiffs'
claims under the Connecticut Constitution and statutes, the IDEA,
Section 504, the ADA, and for negligent infliction of emotional
distress pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction, the motion is GRANTED. In so far as the
motions seek dismissal of the remaining state-law claims pursuant
to Fed. R. Civ. P. 12(b)(6), the motion is denied without
prejudice.
The plaintiffs' motion to remand [doc. # 20] is DENIED in
part and GRANTED in part in so far as it asks the court to
decline supplemental jurisdiction and to remand the remaining
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state-law claims to state court.
Accordingly, counts one, two, three, four, five, and eight
of the complaint are dismissed. The Clerk is directed to remand
this action to the Connecticut Superior Court from which it was
removed.
SO ORDERED this 31st day of March, 2008 at Bridgeport,
Connecticut.
/s/____________________________ Alan H. Nevas United States District Judge
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