B. v. San Jose Unified School District

Filing 21

ORDER DENYING DEFENDANT'S MOTION TO DISMISS 6 (Illston, Susan) (Filed on 5/6/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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J.B., by and through his mother, H.S.,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 12-06358 SI
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

v.
SAN JOSE UNIFIED SCHOOL DISTRICT,

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Defendant.

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On April 19, 2013, the Court heard argument on defendant San Jose Unified School District’s
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motion to dismiss plaintiff’s complaint. For the reasons set forth below, the Court DENIES the motion
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to dismiss.
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BACKGROUND
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This case arises from actions by plaintiff’s mother to ensure that he would not be deprived of the
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free appropriate public education (“FAPE”) guaranteed by the Individuals with Disabilities Education
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Act (“IDEA”), 20 U.S.C. § 1400 et seq.
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According to the complaint, plaintiff (“the Student”) was a student at Bret Harte Middle School
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in the San Jose Unified School District (“the District”). Compl. ¶¶ 4, 6. Beginning in May 2005, the
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Student was known to the District as a student with disabilities covered under the IDEA, and was
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eligible for special education services. Id. ¶ 11. However, in May 2011, the District conducted a series
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of assessments to determine if the Student was no longer eligible for special education under the IDEA.
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Id. ¶ 12. On May 25, 2011, an Individualized Education Program (“IEP”) determined that special
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education services should cease based on the reports from the assessments. Id.

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The Student requested another IEP in September 2011, but the District, relying on the May

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assessments, continued to deny special education services to him. Id. ¶ 12. On November 7, 2011, the

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Student’s mother requested an independent educational evaluation (“IEE”) at public expense. Id. ¶ 13.

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The District rejected this request and, on December 16, 2011, the District filed for a due process hearing

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pursuant to 34 C.F.R. § 300.502(b)(2)(i). Id. ¶ 14. The due process complaint contained two issues:

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1) whether the Student continued to be eligible for special education services under the IDEA; and 2)

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whether the District should be required to fund an IEE.
The Student’s mother paid for an IEE of the Student. She also retained legal counsel to defend

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against the due process suit. Id. On June 13, 2012, the IEP committee met and reviewed an IEE report

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United States District Court
For the Northern District of California

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that the Student’s mother had privately funded, which found that the Student had severe ADHD and

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Depression. Id. ¶ 16. The District found that the Student was eligible for special education. Id.

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On June 19, 2012, the District filed a “Withdrawal of Issue #1” in its due process complaint,

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withdrawing the issue of whether the Student was eligible for special education. Id. ¶ 17. However, the

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District continued to assert that it rightfully denied the request for an IEE, and the parties prepared for

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a hearing on that issue. Id. ¶¶ 17, 19. On July 12, 2012, four days before the hearing was scheduled to

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begin, the District agreed to reimburse the Student’s mother for the IEE. Id. ¶ 20. The next day, the

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District withdrew its due process complaint. Id. ¶ 21. On August 16, 2012, the Administrative Law

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Judge dismissed the case, citing the “District’s withdrawal” as the reason for the dismissal. Def.’s Req.

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for Judicial Notice, Ex. C.

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The Student brought this action seeking attorneys’ fees incurred in defense of the District’s due

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process action. The District moved to dismiss the complaint, arguing that the Student is not the

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prevailing party and therefore not entitled to attorneys’ fees.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff
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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require “heightened fact pleading

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of specifics,” Twombly, 550 U.S. at 544, a plaintiff must provide “more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do,” id. at 555. The plaintiff must

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allege facts sufficient to “raise a right to relief above the speculative level.” Id.
In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff’s

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allegations are true and must draw all reasonable inferences in his or her favor. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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United States District Court
For the Northern District of California

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St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, “the tenet that a court

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must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

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Iqbal, 556 U.S. at 678. In considering a motion to dismiss, the court may take judicial notice of matters

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of public record outside the pleadings. See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th

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Cir. 1986).

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DISCUSSION

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Under the IDEA, “the court, in its discretion, may award reasonable attorney’s fees as part of

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the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C.

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§ 1415(i)(3)(B)(i)(I) (emphasis added). A prevailing party is one who “‘succeed[s] on any significant

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issue in litigation which achieves some of the benefit the parties sought in bringing the suit.’” Parents

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of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir.1994) (quoting Hensley v.

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Eckerhart, 461 U.S. 424, 433 (1983)). Such success results in a “material alteration of the legal

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relationship of the parties,” and there “must be a causal link between the litigation brought and the

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outcome gained.” Id. (citations and quotations omitted). If a party fails to secure a judgment on the

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merits or a court-ordered consent decree, but nonetheless achieves the desired result through a voluntary

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change, it cannot be considered the prevailing party. Buckhannon Bd. & Care Home, Inc. v. W. Virginia

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Dept. of Health & Human Res., 532 U.S. 598, 600 (2001). Additionally, a party will not be considered

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the prevailing party if the success is “purely technical or de minimis.” Texas State Teachers Ass’n v.

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Garland Independent Sch. Dist., 489 U.S. 782, 792 (1989).
The District argues that there has been no judicially sanctioned change in the parties’

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relationship. The District withdrew its complaint without prejudice, the parties did not contract to any

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settlement agreement, and the dismissal was based on the withdrawal, not on the merits of the case.

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Relying on Buckhannon, the District argues that because the Student did not “receive[] a judgment on

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the merits, or obtain[] a court-ordered consent decree,” he therefore cannot be the prevailing party. 532

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U.S. at 600. In 2008, the Ninth Circuit applied Buckhannon to deny IDEA prevailing party fees to a

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defendant school district, after the parent’s case was dismissed without prejudice.1 The court found that

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United States District Court
For the Northern District of California

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the dismissal without prejudice “does not alter the legal relationship of the parties because the defendant

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remains subject to the risk of re-filing,” and therefore the school district was not the prevailing party.

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Oscar v. Alaska Dept. of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008).

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This case is unique in its procedural posture. Typically, the plaintiff in a case desires action or

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compensation from the defendant. However, in this IDEA case the roles became reversed. The District

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became the plaintiff when it filed the due process complaint against the Student, even though it was the

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Student who desired the IEE from the District. Once the due process action was initiated, the Student’s

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parents understandably retained counsel. After a year and a half of litigation, the Student received

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everything he desired when he was reimbursed completely for the IEE and he was placed back into

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special education. No consent decree was needed, because the District had the power both to grant the

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Student’s IEE payment and to withdraw its complaint – i.e., the District had control over both the

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complaint and the remedy. A consent decree would have been necessary only if the Student had filed

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a cross-complaint to the District’s due process filing, which the Student had no need to do under these

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IDEA sets out different standards for the award of prevailing party fees to parents and to school
districts. Parents may recover reasonable fees when they prevail. 20 U.S.C. § 1415(i)(3) (B)(i)(I). State
or local educational agencies may recover such fees only where the parent’s action was “frivolous,
unreasonable, or without foundation.” 20 U.S.C.§ 1415(i)(3)(B)(i)(II).
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circumstances.2 The Student did, however, have need of legal counsel: to defend himself against a due

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process complaint filed by the District, a Student, and his parents, will essentially be forced to hire legal

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counsel. Thus, the procedural posture of this case makes it unique when determining which party is the

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“prevailing party,” and creates special concerns.
This case is distinguishable from cases like Oscar, where the Ninth Circuit held that a dismissal

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without prejudice is insufficient to establish prevailing party status, since the dismissed claim in Oscar

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could be – indeed, had been – refiled. Here, the Student argues that the District would be precluded

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from refiling its case, on timeliness grounds, even though the dismissal was technically without

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prejudice. In Miles v. California, 320 F.3d 986, 989 (9th Cir. 2003), the Ninth Circuit held that

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United States District Court
For the Northern District of California

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defendant was a prevailing party when plaintiff’s federal ADA action was dismissed without prejudice

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to refiling a state claim: the dismissal eliminated plaintiff’s right to further proceedings in federal court.

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The court in Oscar specifically distinguished Miles, because in Miles the dismissal without prejudice

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“changed the legal relationship of Miles with respect to the [defendant],” because he could not refile his

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case in federal court. Oscar, 541 F.3d at 982 (9th Cir. 2008). Thus, if a dismissal without prejudice

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nevertheless precludes refiling a complaint, it alters the legal relationship of the parties; this “material

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alteration of the legal relationship of the parties” may be sufficient to find that one party is the prevailing

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party. Miles, 320 F.3d at 989 (quoting Buckhannon, 532 U.S. at 603).

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The Student argues that, as in Miles, the District will be precluded from refiling its case because

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of the procedural requirements of the IDEA. Under the IDEA, a school district must file a due process

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complaint affirming its denial of the IEE “without unnecessary delay.” 34 C.F.R § 300.502(b)(2).

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Initially, the District filed its due process complaint within two weeks of receiving the Student’s IEE

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request; however, more than seven months had passed by the time that the District withdrew the

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complaint. The Student argues that seven months is longer than courts have allowed for a school district

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to file a due process complaint after receiving an IEE request. See, e.g., M.M. v. Lafayette Sch. Dist.,

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CV 09-4624, 2012 WL 3257662 (N.D. Cal. Aug. 8, 2012) (waiting 74 days before filing the due process

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A rule allowing successful parents to be reimbursed for attorneys fees only if they filed
affirmative cross-complaints in a District’s due process proceeding would unnecessarily complicate
what was meant to be a steamlined process, and would add needless expense.
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complaint was unnecessary delay); J.P. ex rel., E.P. v. Ripon Unified Sch. Dist.,

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207CV02084MCEDAD, 2009 WL 1034993 (E.D. Cal. Apr. 15, 2009) (finding that two months was not

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unnecessary delay only because the parties had reached an impasse in their IEE negotiations less than

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three weeks before the due process complaint was filed); Pajaro Valley Unified Sch. Dist. v. J.S., 2006

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WL 3734289, *3 (N.D. Cal. 2006) (finding that the school district’s delay of three months before filing

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for due process to contest the IEE was unnecessary delay).
The District did not address this argument in its briefs. At oral argument, the District argued that

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it was not precluded from refiling its case, and pointed to the second case that was filed on this issue.

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However, the second case was filed by the Student, not the District, and seeks recompense for and a

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United States District Court
For the Northern District of California

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continuation of tutoring, counseling, and transportation; this is not a claim regarding the denial of the

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IEE. Def.’s Req. for Judicial Notice, Ex. D. This second case is not relevant to the issue of the

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District’s denial of the IEE request, which was the basis of the first suit.

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The Court finds that the Student has alleged sufficient facts to argue that the District would be

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precluded from refiling its complaint after waiting seven months, because to do so would constitute

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“unnecessary delay.” Under those circumstances, the voluntary withdrawal would have changed the

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legal relationship between the parties, and the dismissal would have essentially eliminated the right of

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the District to further contest the IEE, and thus enabled the finding of a prevailing party. Moreover, the

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unique procedural posture of the underlying action makes this case anomalous. It does not fit squarely

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with other precedents, and there are special concerns for students who are forced to defend themselves

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against due process actions by school districts, but have no leverage to enter into a consent decree.

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Accordingly, the Court finds that the Student has alleged sufficient facts to state a claim that he
was the prevailing party, notwithstanding that the underlying case was dismissed without prejudice.

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CONCLUSION
For the foregoing reasons, the Court DENIES defendant’s motion to dismiss.

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IT IS SO ORDERED.

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Dated: May 6, 2013
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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