Dizio v. Manchester Essex Regional School District, et al
Filing
13
Chief Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER ON 6 DEFENDANTS MOTION TO DISMISS (Halley, Taylor)
Case 1:20-cv-11859-FDS Document 13 Filed 08/12/21 Page 1 of 11
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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CYNTHIA DIZIO and JAMES DIZIO,
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individually and on behalf of Jane Doe,
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their minor child,
)
)
Plaintiffs,
)
)
v.
)
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MANCHESTER ESSEX REGIONAL
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SCHOOL DISTRICT, PAMELA BEAUDOIN, )
STEVE GUDITUS, ALLISON COLLINS,
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HELEN BRYANT, DR. DEBRA WELLING,
)
KEVIN O’MALEY, and DONNA SMITH,
)
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Defendants.
)
__________________________________________)
Civil Action No.
20-11859-FDS
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
SAYLOR, C.J.
This lawsuit arises out of a dispute between a school district and the parents of a disabled
child. Plaintiffs Cynthia and James Dizio are the parents of Jane Doe.1 According to the
complaint, Jane is approximately 16 years old and has a variety of disabilities, including
attention deficit/hyperactivity disorder (“ADHD”), predominantly inattentive presentation,
anxiety disorder, school refusal, depression, slow processing disorder, possible mood disorder,
and executive function deficiencies.
In substance, plaintiffs allege that defendants Manchester Essex Regional School District
(“MERSD”) and the various named school officials refused to provide Jane with a free
1
Jane Doe is a pseudonym.
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appropriate public education (“FAPE”), as guaranteed by the Individuals with Disabilities
Education Improvement Act of 2004 (“IDEA”). The complaint asserts eight claims: (1) a claim
for discrimination based on disability in violation of Title II of the Americans with Disabilities
Act (“ADA”) and § 504 of the Rehabilitation Act, 29 U.S.C. § 794; (2) a claim under 42 U.S.C.
§ 1983 for due-process violations and failure to provide a FAPE as guaranteed by the IDEA, 20
U.S.C. § 1400(d)(1)(A); (3) a claim under § 1983 for violations of the IDEA; (4) a claim for
violations of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I; (5) negligence;
(6) retaliation; (7) negligent and intentional infliction of emotional distress; and (8) loss of
consortium.
The principal focus of the complaint involves events that occurred during school years
beginning in 2012-13 and ending in 2015-16. The last complained-of events occurred in October
2016.
Plaintiffs previously filed a complaint that alleged identical claims. That complaint was
filed on December 3, 2018. On August 12, 2019, the Court dismissed Counts One through Five
for lack of subject-matter jurisdiction because it found that plaintiffs had failed to exhaust their
administrative remedies at the Bureau of Special Education Appeals (“BSEA”), as IDEA
requires, and dismissed Counts Six through Eight because their success was dependent on the
IDEA claims, which were being dismissed for failure to exhaust, and those counts therefore
failed to state a claim for relief.2 On September 12, 2019, plaintiffs appealed that dismissal to
the First Circuit. On September 24, 2019, they moved this Court to stay the action while they
The Court had issued a memorandum and order on August 8, 2019, dismissing plaintiffs’ claims on those
same grounds. That same day, the First Circuit issued its decision in Parent/Prof’l Advocacy League, et al. v. City
of Springfield, et al., 2019 WL 3729033 (1st Cir. Aug. 8, 2019). On August 12, 2019, the Court issued an amended
memorandum and order to provide updated citations in light of that opinion.
2
2
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sought administrative relief at the BSEA. On October 8, 2019, they moved for reconsideration
of the Court’s August 12, 2019 order.
On September 30, 2019, plaintiffs filed a hearing request with the BSEA, contending that
MERSD denied Jane a FAPE by failing to place her on a section 504 plan or an Individualized
Education Program (IEP) in elementary and middle school. (Defs. Mem. Ex. 2 (“BSEA
Decision”) at 1). On October 10, 2019, MERSD moved to dismiss plaintiffs’ claims for failure
to state a claim on the grounds that their claims were time-barred under the applicable statute of
limitations. (Id.).
On October 23, 2019, the Court denied plaintiffs’ motions for reconsideration of its
August 12, 2019 order and to stay the case. On December 2, 2019, the BSEA granted MERSD’s
motion to dismiss on the grounds that plaintiffs’ claims “[fell] outside the applicable statute of
limitations.” (Id. at 9-10); see also 20 U.S.C. § 1415 (f)(3)(C). On December 9, 2019, the First
Circuit denied plaintiffs’ appeal as untimely.
On October 16, 2020, plaintiffs filed the complaint in this action.3 On December 15,
2020, defendants moved to dismiss the complaint for lack of subject-matter jurisdiction on two
grounds. First, they contend that “the original complaint was dismissed as a result of the
plaintiffs’ failure to exhaust their administrative remedies, the dismissal of which was on the
merits, [and therefore] the plaintiffs are not entitled to refile the suit under [the Massachusetts
renewal statute, Mass. Gen. Laws ch.] 260, § 32 . . . .” (Defs. Mot. Dismiss at 2). Second, they
contend that because the BSEA dismissed plaintiffs’ claims as untimely, plaintiffs have not in
fact exhausted their administrative remedies, and therefore, this Court still lacks subject-matter
The facts underlying plaintiffs’ claims are set forth in detail in the Court’s amended memorandum and
order dated August 12, 2019. See Dizio v. Manchester Essex Reg’l Sch. Dist., 2019 WL 3797015, at *1-6 (D. Mass.
Aug. 12, 2019) (“Dizio I”).
3
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jurisdiction over the action. (Id.).
For the reasons stated below, the motion will be denied as to defendants’ second ground.
As to the first ground, the motion will be denied, but without prejudice to the raising of any other
issues involving the timeliness of any of plaintiffs’ claims.
I.
Legal Standard
On a motion to dismiss for lack of subject-matter jurisdiction made pursuant to Fed. R.
Civ. P. 12(b)(1), “the party invoking the jurisdiction of a federal court carries the burden of
proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber
Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). When ruling on a 12(b)(1)
motion, the court “must credit the plaintiff's well-[pleaded] factual allegations and draw all
reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st
Cir. 2010).
On a motion to dismiss made pursuant to Rule 12(b)(6), the court “must assume the truth
of all well-plead[ed] facts and give . . . plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing
Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In other words, the “[f]actual allegations must be enough to raise a right to
relief above the speculative level, . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 556). Dismissal is appropriate if the complaint fails to set forth “factual allegations,
either direct or inferential, respecting each material element necessary to sustain recovery under
4
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some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting
Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
II.
Analysis
Defendants first contend that “the original complaint was dismissed as a result of the
plaintiffs’ failure to exhaust their administrative remedies, the dismissal of which was on the
merits, [and therefore] the plaintiffs are not entitled to refile the suit under [Mass. Gen. Laws ch.]
260, § 32,” the Massachusetts renewal statute, which permits certain claims to be filed outside
the ordinary limitations period. (Defs. Mot. Dismiss at 2).4 Second, they contend that “the
untimely filing with the [BSEA] . . . does not act to exhaust [] administrative remedies” and
therefore, the Court lacks subject-matter jurisdiction over this action. (Id.).
Plaintiffs contend that the dismissal in Dizio I for lack of subject-matter jurisdiction is a
dismissal for a “matter of form” within the meaning of the renewal statute. (Compl. ¶ 25; Pl.
Opp. at 7). They further contend that they have exhausted their IDEA administrative remedies,
because, among other reasons, the BSEA stated that “[s]tudent’s claims at the administrative
level are deemed to have been exhausted.” (Compl. ¶ 22; Pl. Opp. at 11; BSEA Decision at 12).
A.
The Massachusetts Renewal Statute
Mass. Gen. Laws ch. 260, § 32—known as the “renewal” statute—provides as follows:
“[i]f an action duly commenced within the time limited in this chapter is dismissed for . . . any
matter of form . . . the plaintiff [] may commence a new action for the same cause within one
year after the dismissal or other determination of the original action.” The renewal statute
permits the assertion of certain claims that would otherwise be barred by the statute of
4
Although defendants frame that issue as one involving subject-matter jurisdiction, it actually involves the
application of a statute of limitations.
5
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limitations. Rodi v. S. New England Law Sch., 389 F.3d 5, 18 (1st Cir. 2004). The statute,
among other things, requires a plaintiff to commence a “new action for the same cause within
one year after the dismissal or other determination of the original action.” Mass. Gen. Laws ch.
260, § 32.
The purpose of the renewal statute is to ensure that “where [a] plaintiff has been defeated
by some matter not affecting the merits, some defect or informality, which he can remedy or
avoid by a new process,” the statute of limitations “shall not prevent him from doing so.” Rodi,
389 F.3d at 18 (quoting Coffin v. Cottle, 33 Mass. 383, 386 (1835)) (emphasis added).
Therefore, if a dismissal is for a matter not affecting the merits, it is considered a dismissal for a
“matter of form.” See Corliss v. City of Fall River, 397 F. Supp. 2d 260, 266 (D. Mass. 2005)
(citing Liberace v. Conway, 31 Mass. App. Ct. 40, 44 (1991)).
The Court will address only the narrow issue that defendants raised and to which
plaintiffs responded: whether a dismissal for a lack of subject-matter jurisdiction is a dismissal
for a “matter of form” within the meaning of the renewal statute.
Pursuant to Federal Rule of Civil Procedure 41(b), a dismissal in a district court is an
“adjudication on the merits” unless “the court in its order otherwise specifies,” or the dismissal is
for “lack of jurisdiction,” which includes “jurisdiction . . . over the subject matter.” Fed. R. Civ.
P. 41(b); Costello v. United States, 365 U.S. 265, 284-85 (1961). Counts One through Five were
dismissed for lack of subject-matter jurisdiction because plaintiffs had not exhausted their
administrative remedies. Dizio I at 14, 20 (citing CBDE Pub. Sch. v. Mass. Bureau of Special
Educ. Appeals, 2012 WL 4482296, at *6 (D. Mass. Sept. 27, 2012) (noting that “[a] district
court . . . [] has no subject[-]matter jurisdiction . . . until th[at] exhaustion requirement has been
met.”). Accordingly, the dismissal of those counts was for a “matter of form.” See also Lebron-
6
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Rios v. U.S. Marshal Serv., 341 F.3d 7, 13 (1st Cir. 2003) (holding that district court’s dismissal
“with prejudice” only applied to question of whether plaintiffs failed to exhaust EEOC
administrative remedies, and not to the merits of plaintiffs’ substantive claims); Corliss, 397 F.
Supp. 2d at 266 (concluding that a dismissal for lack of subject-matter jurisdiction was a
dismissal for a “matter of form” for purposes of the renewal statute).
Accordingly, defendants’ motion to dismiss will be denied to the extent it claims that the
dismissal of Counts One through Five in Dizio I was not a dismissal for a “matter of form.” The
motion will be denied without prejudice to the raising of any other issues involving the
timeliness of plaintiffs’ claims.
As noted, the only issue raised is the applicability of the Massachusetts renewal statute to
dismissals for lack of subject-matter jurisdiction. The Court takes no position as to whether any
or all of the claims are barred by the two-year statute of limitations applicable to claims brought
under IDEA, Section 504, or the ADA, or the three-year statute of limitations applicable to
claims brought under § 1983 or for common-law torts.5 The original action was filed on
December 3, 2018, based on events that had occurred in October 2016 and earlier. Similarly, the
Court takes no position as to whether any or all of the claims are barred by the one-year
5
Among other items, the complaint asserts (1) a claim for discrimination based on disability in violation of
Title II of the ADA and § 504 of the Rehabilitation Act; (2) a claim under § 1983 for due-process violations and
failure to provide a FAPE as guaranteed by the IDEA; (3) a claim under § 1983 for violations of the IDEA; (4) a
claim for violations of Mass. Gen. Laws ch. 12, § 11I; and (5) a claim for negligence.
The IDEA generally has a two-year statute of limitations. Section 504 and the ADA do not have their own
statutes of limitation, but courts have borrowed the IDEA’s statute of limitations for ADA and section 504 claims
that are based on a plaintiff’s IDEA claim. See, e.g., E.E. v. Ridgefield Park Bd. of Educ., 2020 WL 3097473, at *8
(D.N.J. June 11, 2020) (applying it to an ADA claim); P.P. ex. Rel. Michael P. v. W. Chester Area Sch. Dist., 585
F.3d 727, 737 (3d Cir. 2009) (applying it to a section 504 claim).
Mass. Gen. Laws ch. 260, § 2A provides as follows: “Except as otherwise provided, actions of tort, actions
of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next
after the cause of action accrues.” Mass. Gen. Laws ch. 260, § 2A (emphasis added); see also Alvarez v. City of
Worcester, 450 F. Supp. 3d 74, 79-80 (D. Mass. 2020) (noting that Mass. Gen. Laws ch. 260, § 2A provides the
statute of limitations for claims under the Massachusetts Civil Rights Act). The Federal Civil Rights Statute, 42
U.S.C. § 1983, borrows that statute of limitations. See Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991).
7
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limitations period set forth in the Massachusetts renewal statute. This Court’s order of dismissal
was entered on August 12, 2019, and this action was filed on October 16, 2020, more than one
year later.6
B.
Exhaustion Requirement
Defendants further contend that plaintiffs still have not exhausted their administrative
remedies, because the BSEA dismissed their claims after it determined that “all of
[them] . . . [fell] outside the applicable statute of limitations,” (BSEA Hearing at 10), and such a
dismissal does not exhaust administrative remedies under the IDEA.
IDEA’s exhaustion provision provides as follows:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures,
and remedies available under the Constitution, the Americans with Disabilities
Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws
protecting the rights of children with disabilities, except that before the filing of a
civil action under such laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and (g) shall be exhausted to the
same extent as would be required had the action been brought under this
subchapter.
20 U.S.C. § 1415(l). That exhaustion requirement is not limited to claims based directly upon
violations of the IDEA, and applies “even when the suit is brought pursuant to a different statute
so long as the party is seeking relief that is available under subchapter II of IDEA.” Frazier v.
6
That issue appears to turn on whether the relevant date is the date of dismissal (August 12, 2019) or the
date of the expiration of the 30-day appeal period under Fed. R. App. P. 4 (September 11, 2019), rather than the date
of denial of the motion for reconsideration (October 23, 2019) or the date the untimely appeal was denied
(December 9, 2019). See Mass. Gen. Laws ch. 260, § 32 (indicating that the new action must be commenced
“within one year after the dismissal or other determination of the original action) (emphasis added); Jones v. Binette,
19 F. App’x 6, 7 (1st Cir. 2001) (determining that it “need not decide whether, in a case where an appeal has been
pursued, th[e] period [at issue] begins to run at the time the lower court acts or at the time the appellate court does”
because “[in Jones], plaintiff [had] filed no timely notice of appeal in his first suit” and therefore, “the one-year
period [] commenced, at the latest, on the date the appeal period expired . . . .”); Rife v. OneWest Bank, F.S.B., 2016
WL 8709995, at *5 (D. Mass. Feb. 12, 2016) (noting that the plaintiff had not pointed to “[any] authority holding
that a cause of action is ‘dismissed’ for the purposes of Mass. Gen. Laws ch. 260, § 32 when a judgment is affirmed
rather than when the trial court enters dismissal,” although also noting that the plaintiff in that case “[had not]
challenge[d] the dismissal for lack of jurisdiction in his appeal”).
8
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Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002); Rose v. Yeaw, 214 F.3d 206, 210 (1st
Cir. 2000).
To exhaust his or her administrative remedies, a plaintiff generally must “obtain a
decision from . . . the BSEA, following an impartial due process hearing [under] 20 U.S.C. §
1415(f), (g).” S.S. by S.Y. v. City of Springfield, 146 F. Supp. 3d 414, 424 (D. Mass. 2015); see
also Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st Cir. 2000) (“IDEA's mandate is
explicit: plaintiffs must exhaust IDEA's impartial due process hearing procedures in order to
bring a civil action under subchapter II of IDEA or any ‘such law[] seeking relief that is also
available’ under subchapter II of IDEA.”). By contrast, administrative remedies have not been
exhausted if a plaintiff “never made a request for a due process hearing” or never “explain[ed] []
why administrative remedies cannot be pursued.” Christopher W. v. Portsmouth Sch. Comm.,
877 F.2d 1089, 1096-97 (1st Cir. 1989).
The exhaustion requirement “enables the [educational] agency to develop a factual
record, to apply its expertise to the problem, to exercise its discretion, and to . . . [promote]
accuracy, efficiency, agency autonomy, and judicial economy.” Frazier, 276 F.3d at 60 (quoting
Christopher W., 877 F.2d at 1094). However, where exhaustion would be futile, such as where
the “state agency itself prevented administrative remedies from being exhausted,” it may not be
required. Christopher W., 877 F.2d at 1092-94. For example, in Kerr Ctr. Parents Ass’n v.
Charles, 897 F.2d 1463 (9th Cir. 1990), plaintiffs requested a due-process hearing, but the school
declined to provide one, and informed them that it would not provide the educational program
they sought. Id. at 1470.7 The Ninth Circuit rejected defendants’ contention that plaintiffs had
7
Under the law of Oregon—the state where the plaintiffs in Kerr resided—the due-process hearing is
“conducted by the local school district or, in some cases, by [the state agency].” Id. at 1469.
9
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not exhausted their administrative remedies because “at [that] point[,] plaintiffs should have
asked the court [] to compel an administrative hearing.” Id. It reasoned that “[a]fter plaintiffs
were refused a due process hearing, they had no recourse but to seek judicial relief,” and that
“[they] had already taken all measures to secure administrative relief which could reasonably be
expected of them.” Id.
Here, plaintiffs “filed a Hearing Request [with the BSEA] . . . [contending that MERSD]
denied [Jane] a . . . FAPE[] by failing to place [her] on a Section 504 Plan or an Individualized
Education Program (IEP) in elementary and middle school.” (BSEA Decision at 1). In response,
MERSD moved to dismiss the hearing request on the grounds that their claims were time-barred.
(Id.). On December 2, 2019, after considering the oral argument and written submissions of the
parties, the BSEA granted the motion to dismiss, finding that “all of [plaintiffs’] . . . claim[s]
[fell] outside the applicable statute of limitations.” (BSEA Decision at 1, 10). It never
developed a factual record because it granted the motion to dismiss. (Id.). Nevertheless,
plaintiffs requested a due-process hearing in accordance with sections (f) and (g), and the BSEA
rendered a final decision on the merits—that is, it dismissed plaintiffs’ action “with prejudice.”
(Id. at 12 (noting that it was dismissing the hearing request with prejudice)).8 In addition, the
BSEA specifically noted in its order of dismissal that “[s]tudent’s claims at the administrative
level are deemed to have been exhausted.” (Compl. ¶ 22; Pl. Opp. at 11; BSEA Decision at 12).
Accordingly, under these circumstances, “plaintiffs had [at that point] taken all measures to
secure administrative relief which could reasonably be expected of them,” and therefore, had
8
Neither defendants nor plaintiffs (nor the BSEA, for that matter) specifically stated that plaintiffs
requested a “due-process” hearing, but they all stated that plaintiffs requested a “hearing.” It appears reasonable to
assume that that request was for a due-process hearing, and on a motion to dismiss, the Court draws all reasonable
inferences in plaintiffs’ favor.
10
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either satisfied the exhaustion requirement, or were no longer required to, because to pursue
administrative relief further would have been futile in light of the December 2, 2019 dismissal.
Kerr, 897 F.2d at 1470.9
For those reasons, defendants motion to dismiss will be denied as to the issue of whether
the BSEA’s dismissal satisfied IDEA’s exhaustion requirement.
IV.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss is DENIED without prejudice
as to the issue of whether the renewal statute applies, and DENIED as to the issue of exhaustion
of remedies.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Chief Judge, United States District Court
Dated: August 12, 2021
9
The Court also notes that defendants have not pointed to any authority to support a different conclusion—
that is, that a dismissal on statute of limitations grounds does not exhaust a plaintiff’s claims.
11
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