Northport Public School v. Gerald Woods, et al

Filing 127

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NORTHPORT PUBLIC SCHOOL and
NORTHPORT PUBLIC SCHOOL
BOARD OF EDUCATION,

Case No. 1:11-cv-982

Plaintiffs,

HON. JANET T. NEFF

v
GERALD WOODS and PATRICIA
WOODS, on their own behalf and on
behalf of their minor child, T.W.,
Defendants.
_______________________________/
OPINION
Two motions to dismiss are pending in this continuing litigation under the Individuals with
Disabilities Education Act (IDEA1), 20 U.S.C. § 1400 et seq., between Defendants Gerald and
Patricia Woods (hereinafter collectively “the Woods”) and Plaintiffs Northport Public School and
Northport Public School Board of Education (hereinafter collectively “Northport”), the school
district where the Woods’ son, T.W., has been intermittently enrolled.2 The Woods move to dismiss
the two counts in which they are named in Northport’s First Amended Complaint. Attorney John

1

In 2004, Congress enacted the Individuals with Disabilities Education Improvement Act
(IDEIA) to “reauthorize” the IDEA. See Pub. L. No. 108–446, 118 Stat. 2647 (Dec. 3, 2004),
effective July 1, 2005. Consistent with the amended act itself, which continues to state that it may
be cited as the “Individuals with Disabilities Education Act,” 20 U.S.C. § 1400(a), and the statutory
references in the parties’ motion papers, the references herein will be to the IDEA, as amended.
2

The prior cases between these parties in this Court are Gerald & Patricia Woods v.
Northport Public Schools, et al., No. 1:09-cv-243, aff’d in part & vacated in part, 487 F. App’x 968
(6th Cir. 2012); and Gerald & Patricia Woods v. Northport Public School, et al., 1:09-cv-855.

F. Brower, who previously represented the Woods in this action, moves to dismiss the three counts
in which he is named. For the reasons that follow, the Woods’ Motion to Dismiss (Dkt 119) and
Attorney Brower’s Motion to Dismiss (Dkt 123) are granted in part and denied in part.
I. BACKGROUND
Few facts are necessary for resolving the motions at bar. T.W., the son born to the Woods
on September 30, 1998, was diagnosed with autism spectrum disorder and cerebral palsy, disabilities
that qualify him for special education and related services under the IDEA, a Spending Clause
statute that seeks to ensure that “all children with disabilities have available to them a free
appropriate public education” (FAPE), 20 U.S.C. § 1400(d)(1)(A). “[T]he core of the statute ... is
the cooperative process that it establishes between parents and schools,” and the “central vehicle for
this collaboration is the [Individualized Education Program] IEP process.” Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 53 (2005).
In May 2010, the Woods filed a due process complaint, requesting a hearing in the Michigan
Administrative Hearing System (MAHS), challenging the June 2008 IEP and alleging that T.W. had
not been afforded a FAPE because Northport refused to create an IEP for summers 2009 and 2010
and the 2009-10 and 2010-11 school years. An administrative law judge (ALJ) was appointed to
conduct a hearing in accordance with the IDEA, 20 U.S.C. § 1401 et seq.; MICH. COMP.
LAWS § 380.1701 et seq.; and Michigan’s administrative rules. See MICH. ADMIN. CODE R.
340.1724f(6).
On June 16, 2011, the ALJ issued a Decision and Order, denying in part and granting in part
the Woods’ due process complaint. Specifically, the ALJ reached the following four conclusions:
(1) the June 2008 IEP afforded T.W. a FAPE, and as such, the Woods were not entitled to a remedy

2

on this issue; (2) Northport’s evaluations were “appropriate” and the Woods were “not entitled to
be reimbursed for an [Independent Educational Evaluation] not obtained”; (3) Northport’s failure
to create an IEP for summer 2009 and school year 2009-10, up until February 2, 2010, was not a
denial of a FAPE; and (4) Northport’s failure to create an IEP effective from February 2, 2010 until
September 10, 2010, excluding June, July and August of that year, deprived T.W. of a FAPE, but
no reimbursement of the Woods’ expenses was ordered, “as the private placement was not found
to be appropriate” (Dkt 1-1, Compl., Ex. 1 at 112).
Northport initiated this action on September 14, 2011 with the filing of its Complaint for
Declaratory, Monetary and Equitable Relief (Dkt 1). On January 24, 2012, the Woods filed an
Answer, Affirmative Defenses, and a Counterclaim Complaint for Declaratory, Equitable and
Monetary Relief (Dkt 23). Northport moved to dismiss the Woods’ Counterclaim (Dkt 71), a motion
this Court granted on February 4, 2013, agreeing that the Court did not possess jurisdiction over the
subject matter of the Woods’ Counterclaim (Op. & Order, Dkts 76 & 77).
Northport subsequently filed a First Amended Complaint for Declaratory, Monetary and
Equitable Relief, presenting the following four claims:
I.

Appeal of the ALJ Decision under § 1415 of IDEA;

II.

Claim for Reimbursement of Reasonable Attorney’s Fees, Costs and Pre and
Post Judgment Interest against John F. Brower Individually and in his
Official Capacity with the Law Office of John F. Brower, PLC under 20
U.S.C. § 1415(i)(3)(B)(II);

III.

Claim for Reimbursement of Reasonable Attorney’s Fees, Costs and Pre and
Post Judgment Interest against Parents under 20 U.S.C. § 1415(i)(3)(B)(III);
and

IV.

Claim for Reimbursement of Reasonable Attorney’s Fees, Costs and Pre and
Post Judgment Interest against John F. Brower, Individually and in his

3

Official Capacity with the Law Office of John F. Brower, PLC under 20
U.S.C. § 1415(i)(3)(B)(III)
(Dkt 86).
The Woods and Attorney Brower requested a Pre-Motion Conference, proposing to file
motions to dismiss (Dkts 87-88). This Court conducted a Pre-Motion Conference on April 19, 2013,
at which time counsel for both parties informed the Court of their willingness to engage in good faith
settlement negotiations with the Magistrate Judge before briefing their motions (Order, Dkt 95). The
Magistrate Judge conducted an Early Settlement Conference on June 12, 2013 and July 25, 2013
(Minutes, Dkts 103 & 108). The case did not settle, and the Woods subsequently substituted new
counsel in place of Attorney Brower (Order, Dkt 109).
In October 2013, the parties filed their motion papers. The Woods filed a motion to dismiss
Counts I and III against them (Dkt 119), to which Northport filed a response in opposition (Dkt 122)
and the Woods filed a Reply (Dkt 121). Attorney Brower filed a motion to dismiss Counts I, II and
IV against him (Dkt 123), to which Northport filed a response in opposition (Dkt 126) and Attorney
Brower filed a Reply (Dkt 125). Having conducted a Pre-Motion Conference on this matter and
having fully considered the parties’ written briefs and accompanying exhibits, the Court finds that
the relevant facts and arguments are adequately presented in these materials and that oral argument
would not aid the decisional process. See W.D. Mich. LCivR 7.2(d).
II. ANALYSIS
A. Motion Standard
The motions to dismiss were filed under Federal Rule of Civil Procedure 12(b)(6), which
permits dismissal for failure to state a claim upon which relief can be granted. FED. R. CIV. P.
12(b)(6). A complaint must contain “a short and plain statement of the claim showing that the
4

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint will survive a motion to dismiss
if the plaintiff alleges facts that “state a claim to relief that is plausible on its face” and that, if
accepted as true, are sufficient to “raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (retiring the “no set of facts” formulation). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556) (clarifying that its decision in Twombly
expounded the pleading standard for “all civil actions”). Making a determination of plausibility “is
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
In deciding a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6), the
court must treat all well-pleaded allegations in the complaint as true and draw all reasonable
inferences from those allegations in favor of the nonmoving party. Children’s Ctr. for Dev.
Enrichment v. Machle, 612 F.3d 518, 521-22 (6th Cir. 2010). However, the court “need not accept
as true legal conclusions or unwarranted factual inferences” set forth in a complaint. Gean v.
Hattaway, 330 F.3d 758, 765 (6th Cir. 2003) (quoting Grindstaff v. Green, 133 F.3d 416, 421 (6th
Cir. 1998)). When, as here, a document is referred to in the pleadings and is integral to the claims,
it may be considered without converting a motion to dismiss into one for summary judgment. See,
e.g., Children’s Ctr. for Dev. Enrichment v. Machle, No. 2:08-cv-817, 2009 WL 585817, at *2 n.2
(S.D. Ohio Mar. 6, 2009), aff’d 612 F.3d 518 (6th Cir. 2010).

5

B. Discussion
Northport’s First Amended Complaint can be properly divided into two parts: (1) Count I,
the Appeal of the ALJ decision, from which Northport seeks equitable relief, to wit: the review and
release of the documents; and (2) Counts II through IV, the claims for attorney fees and costs, from
which Northport seeks declaratory and monetary relief. See generally King ex rel. King v. Floyd
Cnty. Bd. of Educ., 228 F.3d 622, 625-26 (6th Cir. 2000) (describing fee claims as “ancillary” to an
underlying education dispute). The Court will examine the arguments for dismissal of each count,
in turn.
1.

Count I: Appeal of the ALJ Decision
In Count I of Northport’s initial Complaint filed September 14, 2011, Northport sought this

Court’s review of five rulings by the ALJ: (1) the ALJ’s exercise of jurisdiction over a “moot IEP;”
(2) the ALJ’s in camera review of certain documents responsive to Northport’s subpoena and
decision to deny Northport “access to documents that are believed to show active collusion and
planning on the part of the Parents and John F. Brower ... in needlessly delaying and prolonging the
IEP process and the administrative hearing;” (3) the ALJ’s determination that Northport conduct an
IEP meeting prior to T.W.’s reenrollment; (4) the ALJ’s “failure to recognize and defer” to
recommendations made by others in the case; and (5) the ALJ’s purported usurpation of the IEP
team in her math and language instruction (Dkt 1, Compl. ¶ 37).
In their February 27, 2013 First Amended Complaint, Northport retained only the second of
the five challenges in Count I. Count I (“Appeal of the ALJ Decision Under § 1415 of IDEA”), in
its entirety, now alleges the following:
35.

During the hearing, ALJ Harris conducted an in camera review of certain
documents responsive to a subpoena issued on behalf of the District that the
6

Parents alleged were privileged. Following the in camera review, the ALJ
misapplied the law and denied the District access to documents that are
believed to show active collusion and planning on the part of the Parents and
John F. Brower, individually and in his official capacity with The Law Office
of John F. Brower, PLC in needlessly delaying and prolonging the IEP
process and the administrative hearing.
(Dkt 86, First Amend. Compl.). The relief Northport seeks is for this Court to “[u]ndertake an in
camera review of the material submitted to ALJ Harris to determine whether the documents
submitted are subject to privilege and, to the extent that they are not so protected, release those
documents to Counsel for the District” (id. at 16).
Attorney Brower points out that Northport no longer seeks review “from any of the substance
of the ALJ’s decision” and that Northport’s Count I asks this Court to review a discovery issue that
Northport does not claim affected the ultimate decision below (Dkt 124 at 13). Brower argues that
Northport therefore fails to state a cause of action under IDEA in Count I because Northport does
not claim, and cannot claim, “aggrieved party” status as required under 20 U.S.C. § 1415(i)(2)(A)
(id.). The Woods set forth a similar argument in their motion to dismiss Count I, asserting that
“[t]he due process hearing is over and there is no need for Northport to have possession of the
subpoenaed documents. Further, Northport is not appealing any other portions of the Decision and
Order so the issue is moot” (Dkt 120 at 23).
Pointing out that it could not have appealed from the ALJ’s discovery ruling before a final
order was issued in this case, Northport responds that Count I satisfies the requirements for an
aggrieved party pleading for review of a pretrial order, thus supporting denial of the motions to
dismiss Count I (Dkt 126 at 9-10). Northport contends that the factual allegations, and the
reasonable inferences therefrom, clearly state a facially plausible claim for review of the ALJ’s
relevancy ruling about the documents she reviewed in camera (Dkt 122 at 6, 11-12).
7

Northport’s Count I will be dismissed, for the following reasons.
The procedural safeguards delineated in § 1415 include “an opportunity for an impartial due
process hearing,” 20 U.S.C. § 1415(f)(1)(A), and afford any party to the hearing “the right to present
evidence,” § 1415(h)(2). See also MICH. ADMIN. CODE R. 340.1724f. The IDEA provides that “[a]
decision made in a hearing conducted pursuant to subsection (f) ... shall be final, except that any
party involved in such hearing may appeal such decision under the provisions of ... paragraph (2).”
20 U.S.C. § 1415(i)(1)(A). Paragraph (2) provides that “[a]ny party aggrieved by the findings and
decision made under this subsection, shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section, which action may be brought in any State court of
competent jurisdiction or in a district court of the United States, without regard to the amount in
controversy.” 20 U.S.C. § 1415(i)(2)(A).
Here, during the hearing, Northport issued subpoenas to gather evidence to prove that the
movants improperly colluded and actively obstructed the IEP process (Dkt 122 at 6). The ALJ
conducted an in camera review of the documents provided in response to Northport’s subpoenas,
documents that the Woods alleged were privileged and that Northport alleged would demonstrate
active collusion and planning on the part of the Woods and Brower to needlessly delay and prolong
the IEP process and the administrative hearing. Following the in camera review, the ALJ denied
Northport access to the documents, although the ALJ ultimately found that Gerald Woods and the
Woods’ advocate “did needlessly delay, impede and obstruct the IEPT meetings.” The ALJ
subsequently issued a final order, from which Northport filed this appeal in Count I.
As a threshold matter, the Sixth Circuit Court of Appeals has held that 20 U.S.C.
§ 1415(i)(2)(A) does not authorize “the bringing of an action by the side that prevailed in the

8

administrative proceeding.” King, 228 F.3d at 625. As acknowledged on the record at the PreMotion Conference in this matter, the movants do not dispute that Northport is the “prevailing party”
in the underlying educational dispute (4/19/2013 Premotion Conf. Tr., Dkt 102 at 13). Northport’s
dissatisfaction with the ALJ’s discovery ruling would not ameliorate prevailing-party status.
Northport is not “aggrieved” by the ALJ’s findings and decision in the underlying educational
dispute. Northport is “aggrieved” only in the sense that the IDEA authorizes Northport to come to
district court to seek reasonable attorney fees. See King, 228 F.3d at 625 (reasoning that the 1986
fee award amendment to the IDEA “had the effect of making [a party] who prevailed in the
administrative proceedings with the assistance of counsel an ‘aggrieved’ party, for purposes of 20
U.S.C. § 1415(i)(2), insofar as there was no award of attorney fees”).
Furthermore, Northport’s dissatisfaction with the ALJ’s discovery ruling is not a challenge
made “with respect to the complaint presented pursuant to [20 U.S.C. § 1415(i)(2)(A)],” i.e., a
complaint involving any matter “relating to the identification, evaluation, or educational placement
of the [disabled] child,” 20 U.S.C. § 1415(b)(6)(A). Cf. Traverse Bay Area Intermed. Sch. Dist. v.
Mich. Dep’t of Educ., 615 F.3d 622, 629 (6th Cir. 2010) (holding that “[a] local educational agency
has the right to challenge a provision of a disabled child’s IEP, including its right to appeal an
unfavorable state agency administrative decision, but only if that decision directly involves a
disabled child’s right to a FAPE”). Indeed, it is telling that although Northport titles Count I as an
“Appeal of the ALJ Decision Under § 1415 of IDEA,” Northport does not expressly request this
Court’s review of the ALJ’s discovery ruling or a declaration of error, but merely a review and
release of the documents.

9

In sum, Northport fails to state a proper claim for relief under the IDEA in Count I where 20
U.S.C. § 1415(i)(2)(A) does not authorize the bringing of an action by the side that prevailed in the
administrative proceeding, and where, in any event, Count I does not state a challenge to the
decision directly involving T.W.’s right to a FAPE. Both the Woods and Attorney Brower are
therefore entitled to dismissal of Northport’s Count I.
2.

Counts II–IV: Attorney Fees and Costs
In contrast to the manner in which Count I was pleaded, Northport has properly invoked the

IDEA’s fee-shifting provision, 20 U.S.C. § 1415(i)(3)(B)(i), as the statutory basis for requesting this
Court award their attorney fees and costs. See Machle, 612 F.3d at 521 (acknowledging that the Act
“authorizes an award of attorney’s fees for parents who successfully bring claims under the [Act]
as well as for successful state or local educational agencies when the parents’ claims were frivolous
or unreasonable”); King, 228 F.3d at 626-27 (“Congress has authorized the courts to award attorney
fees in administrative proceedings where there is typically no authority at all for fee applications to
be entertained at the administrative level.”). Indeed, the Sixth Circuit in IDEA lawsuits has
repeatedly “require[d]” district courts to award attorney fees to a prevailing party where no special
circumstances militated against such an award. Keene v. Zelman, 337 F. App’x 553, 557 (6th Cir.
2009) (quoting Tompkins ex rel. A.T. v. Troy Sch. Dist., 199 F. App’x 463, 466 (6th Cir. 2006)
(quoting Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004)).
The movants do not challenge this Court’s assumption of jurisdiction over the claims in
Counts II through IV, nor do the movants challenge Northport’s prevailing-party status, which is the
threshold inquiry in the attorney-fee analysis. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(defining prevailing party); Tompkins, 199 F. App’x at 466. The movants challenge whether

10

Northport has alleged facts that state plausible claims for attorney fees and costs. For the following
reasons, the Court agrees with Northport that the allegations in Counts II through IV state plausible
claims for relief.
a.

Attorney Fees and Costs from Brower under Subparagraph II

In Count II of the First Amended Complaint, Northport seeks attorney fees and costs from
Attorney Brower under 20 U.S.C. § 1415(i)(3)(B)(i), which provides, in pertinent part, that “[i]n any
action or proceeding brought under this section, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs—(II) to prevailing party who is a . . . local educational agency
against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who continued to litigate
after the litigation clearly became frivolous, unreasonable, or without foundation.”
Northport references in support of Count II the ALJ’s findings that Northport’s evaluations
of T.W. were “appropriate” and that the Woods were not entitled to be reimbursed for an
Independent Educational Evaluation (IEE) not obtained (Dkt 86, First Amend. Compl. ¶¶ 36-37).
Northport alleges that the Woods’ “inability or unwillingness to present any evidence regarding the
IEE during the fifteen day hearing while simultaneously refusing to withdraw their request for an
IEE at public expense caused the issue to become patently frivolous, unreasonable, or without
foundation” (id. ¶ 38). Northport further alleges that “[a]s a result of the Parents’ continuation of
the complaint when it was patently frivolous, unreasonable or without foundation, the Northport
Public School and the Northport Public School Board of Education are entitled to full
reimbursement of their reasonable attorney’s fees and costs against the Parents’ attorney, John F.

11

Brower, individually and in his official capacity with The Law Office of John F. Brower, PLC. 20
U.S.C. § 1415(i)(3)(B)(II)” (id. ¶ 39).
Attorney Brower argues that Count II fails to allege facts showing that the Woods’ May 2010
due process complaint was frivolous, unreasonable, or without foundation—or clearly became
frivolous, unreasonable or without foundation—and therefore Count II fails as analyzed under
Iqbal/Twombly (Dkt 124 at 14). Brower emphasizes that the Woods’ request for an IEE at public
expense is not a “complaint” within the meaning of 20 U.S.C. § 1415(i)(3)(B)(II) (id. at 15).
Northport responds that based on the facts pleaded, the elements required for pleading
prevailing-party status are satisfied and Count II contains sufficient factual allegations to put
Attorney Brower on notice that Northport is seeking reimbursement from him for Northport’s
attorney fees and costs (Dkt 126 at 12). Northport asserts that this Court should decline Brower’s
invitation to engage in an inappropriate and premature analysis under FED. R. CIV. P. 56, the
summary judgment rule (id. at 13).
Brower’s arguments do not support dismissal. The due process complaint Attorney Brower
filed on the Woods’ behalf initiated the administrative proceedings and, as explained supra,
concomitantly unlocked the door for the party that prevailed in the administrative proceeding to seek
attorney fees from the district court. The Woods alleged in their complaint that T.W. had not been
afforded a FAPE because Northport refused to create an IEP for summers 2009 and 2010 and the
2009-10 and 2010-11 school years. The ALJ’s findings and decision, including her assessment of
the Woods’ request for an IEE at public expense, if accepted as true, are relevant to demonstrating
the frivolousness, unreasonableness, or lack of foundation of the Woods’ claims, either as the Woods
initially stated the claims or as the claims developed (or degenerated) during the hearing.

12

That Northport’s allegations highlight the Woods’ IEE request, in particular, as frivolous,
unreasonable or groundless does not compel dismissal of Count II under FED. R. CIV. P. 12(b)(6).
See Fox v. Vice, ___ U.S. ___; 131 S. Ct. 2205, 2214 (2011) (holding that 42 U.S.C. § 1988
authorizes a court to award a reasonable attorney fee to a prevailing defendant where the plaintiff
asserted both frivolous and non-frivolous claims); cf. Krichinsky v. Knox Cnty. Schs., 963 F.2d 847,
849-50 (6th Cir. 1992) (the IDEA’s fee-shifting provision is interpreted by analogy to 42 U.S.C. §
1988, the attorney fee provision for civil rights actions). See, e.g., Sagan v. Sumner Cnty. Bd. of
Educ., 501 F. App’x 537, 541 (6th Cir. 2012) (citing Fox, 131 S. Ct. at 2214, and shifting attorney
fees under the IDEA where the parents should have known, either from the outset or as they
completed discovery, that at least some of their claims lacked a basic factual foundation).
Rather, treating as true all well-pleaded allegations in Count II of Northport’s First Amended
Complaint, and drawing all reasonable inferences from those allegations in favor of Northport, the
Court determines that Northport has presented enough facts to state a plausible claim for attorney
fees from Attorney Brower under 20 U.S.C. § 1415(i)(3)(B)(i)(II). Accordingly, Attorney Brower
is not entitled to dismissal of Count II against him.
b.

Attorney Fees and Costs from the Woods under Subparagraph III

In Count III of the First Amended Complaint, Northport seeks attorney fees and costs from
the Woods under 20 U.S.C. § 1415(i)(3)(B)(i), which provides, in pertinent part, that “[i]n any action
or proceeding brought under this section, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs . . . (III) to a . . . local educational agency . . . against the parent,
if the parent’s complaint or subsequent cause of action was presented for any improper purpose,
such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

13

In Count III, Northport references the ALJ’s findings that the conduct of Gerald Woods and
the Woods’ advocate at the November 16 and December 2, 2010 IEP Team (IEPT) meetings was
“unreasonable, reprehensible and obstructive,” that Gerald Woods and the Woods’ advocate “simply
did not wish to give [Northport] an avenue for ending any potential liability for private placement”
(Dkt 86, First Amend. Compl. ¶¶ 42, 45). Northport also quotes the ALJ’s conclusion that Gerald
Woods and the Woods’ advocate “were determined that no IEP would result from the IEPT
meeting” and “did needlessly delay, impede and obstruct the IEPT meetings” (id. ¶¶ 43-44).
Specifically, Northport alleges the following:
46.

The Parents, by obstructing the completion of the IEP, prevented the District
from presenting a completed IEP to the ALJ. In doing so, the Parents
actively sought to deny the District a defense to their allegation that the
District should have completed an IEP. As a result, the Parents caused
unnecessary delay in the hearing and needlessly increased the cost of
litigation.

47.

As a result of the Parents’ deliberate and reprehensible conduct, the
Northport Public School and the Northport Public School Board of Education
are entitled to full reimbursement of their reasonable attorney’s fees and
costs. 20 U.S.C. § 1415(i)(3)(B)(III).

(Dkt 86, First Amend. Compl.)
Like Attorney Brower, the Woods do not contend that Northport’s allegations against them
fail to state a claim because Northport is not the prevailing party; rather, the Woods argue that Count
III of Northport’s First Amended Complaint fails to plead a factual basis to support a claim for
attorney fees (Dkt 120 at 15). Specifically, the Woods argue that Northport has failed to
demonstrate that they filed a due process complaint for an improper purpose (id. at 17). The Woods
argue that their alleged behavior at the November and December 2010 IEP meetings is irrelevant

14

to any awarding or shifting of attorney fees because the meetings were not the subject of the due
process hearing complaint, filed six months earlier (id. at 18-20).
Northport responds that based on the facts pleaded, the elements required for pleading
prevailing-party status are met and Count III contains sufficient factual allegations to put the Woods
on fair notice that Northport is seeking reimbursement for attorney fees and costs (Dkt 122 at 7, 1214). Northport opines that the Woods’ conduct in obstructing the IEP was a “tentacle of their legal
strategy underlying the filing of this hearing request, which was to harass, to cause unnecessary
delay and to needlessly increase the costs of this litigation” (id. at 6). Northport reiterates that this
Court should not engage in an inappropriate and premature merits-based analysis of the claims for
attorney fees (id. at 14-17).
The Woods’ arguments do not support dismissal. Again, the due process complaint filed on
the Woods’ behalf initiated the administrative proceedings and concomitantly unlocked the door for
the party that prevailed in the administrative proceeding to seek attorney fees from the district court.
The ALJ’s findings and decision, including her assessment of the IEP process in this case, are
relevant to demonstrating that the Woods’ complaint was presented for an improper purpose, such
as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. Treating as
true all well-pleaded allegations in Count III of Northport’s First Amended Complaint, and drawing
all reasonable inferences from those allegations in favor of Northport, the Court determines that
Northport has presented enough facts to state a plausible claim for attorney fees from the Woods
under 20 U.S.C. § 1415(i)(3)(B)(i)(III). Therefore, the Woods are not entitled to dismissal of Count
III against them.

15

c.

Attorney Fees and Costs from Brower under Subparagraph III (Sensabaugh)

Last, in Count IV of the First Amended Complaint, Northport also seeks attorney fees and
costs from Attorney Brower under § 1415(i)(3)(B)(i)(III), based on the conduct of Leo Sensabaugh.
In Count IV, Northport indicates that Brower retained Sensabaugh as his paid legal assistant (Dkt
86, First Amend. Compl. ¶¶ 50, 52). Northport points out that Brower filed a motion to quash in the
administrative proceedings below that invoked the attorney-client and attorney-work product
privileges on behalf of Sensabaugh and his employment with The Law Office of John F. Brower,
PLC (id. ¶¶ 51, 53).
Northport references the ALJ’s finding that Sensabaugh, while working on Brower’s behalf
as the Woods’ advocate, engaged in conduct at the November 16 and December 2, 2010 IEP
meetings that was “unreasonable, reprehensible and obstructive” (Dkt 86, First Amend. Compl. ¶
54). Northport also references the ALJ’s finding that Sensabaugh “simply did not wish to give
[Northport] an avenue for ending any potential liability for private placement” (id. ¶ 56). Northport
alleges that
46.

Leo Sensabaugh, by obstructing the completion of the IEP, prevented the
District from presenting a completed IEP to the ALJ. In doing so, Leo
Sensabaugh actively sought to deny the District a defense to their allegation
that the District should have completed an IEP. As a result, Leo Sensabaugh
caused unnecessary delay in the hearing and needlessly increased the cost of
litigation.

47.

As a result of the deliberate and reprehensible conduct engaged in by Leo
Sensbaugh while working for John F. Brower, individually and in his official
capacity with The Law Office of John F. Brower, PLC, the Northport Public
School and the Northport Public School Board of Education are entitled to
full reimbursement of their reasonable attorney’s fees and costs. 20 U.S.C.
§ 1415(i)(3)(B)(III).

(id.)

16

Attorney Brower seeks dismissal of Count IV, arguing that Northport’s allegations are based
on conduct in an IEPT meeting that is not within the scope of § 1415(i)(3)(B)(i)(III) (Dkt 124 at 1819). Notably, Brower does not challenge Northport’s characterization of Sensabaugh’s role or his
potential liability for Sensabaugh’s conduct. Brower instead argues that even if Northport’s
allegations about Sensabaugh’s conduct during the IEPT meetings are afforded credence, and even
if there were some basis to hold Brower vicariously liable for Sensabaugh’s conduct, Northport fails
to state a claim under § 1415(i)(3)(B)(III) because, under that statute, Northport must first show that
the Woods’ due process complaint was frivolous (id. at 19). Brower contends that it is well
established that a complaint is not rendered frivolous merely because it is unsuccessful, and that the
Woods’ complaint was not frivolous as the Woods “prevailed on significant aspects” of their
complaint (id. at 20). Specifically, Brower points to (1) that Northport was required to create a new
IEP for the 2010-2011 school year; (2) that the IEP was dependent on residency; and (3) the ALJ’s
award of extensive program and placement including outside consulting services, special education
teacher services, specialized autism training for staff and extensive related services (id.).
Northport responds that Attorney Brower erroneously attempts to sever the conduct of
Sensabaugh and Gerald Woods at the IEP meetings from the due process hearing, despite the fact
that the Woods’ complaint “thrust the ability of the District to provide a free, appropriate public
education via the IEP directly into their hearing request” (Dkt 126 at 14-15). Northport clarifies that
an award of attorney fees could not be justified by Brower’s or Sensabaugh’s “anger” but may be
justified by, “as detailed in the Amended Complaint and held by ALJ Harris, the improper purpose
... to harass, to cause unnecessary delay or to needlessly increase the cost of litigation by obstructing
the IEP process” (id. at 18).

17

Brower’s arguments for dismissal, which assume the truth of Northport’s allegations about
Sensabaugh’s conduct and do not dispute the propriety of holding Brower vicariously liable for
Sensabaugh’s conduct, focus on the sufficiency of Northport’s allegations about the Woods’
complaint. These arguments do not support dismissal. Like Northport’s allegations in Count III,
Northport’s allegations in Count IV, treated as true and with all reasonable inferences from those
allegations drawn in favor of Northport, similarly demonstrate that the Woods’ complaint was
presented for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly
increase the cost of litigation. That the Woods “prevailed” on other portions of their purportedly
ill-conceived complaint, even if true, does not necessitate a different conclusion or compel dismissal
under FED. R. CIV. P. 12(b)(6). See Sagan, supra; cf. Phelan v. Bell, 8 F.3d 369, 373-74 (6th Cir.
1993) (rejecting the defendants’ “selective focus” on one of the four issues decided by the ALJ and
determining that the plaintiff was the “prevailing party” for purposes of awarding attorney fees).
In short, Attorney Brower is also not entitled to dismissal of Count IV against him.
III. CONCLUSION
For the foregoing reasons, the Court determines that Defendants Gerald and Patricia Woods’
Motion to Dismiss (Dkt 119) and Attorney Brower’s Motion to Dismiss (Dkt 123) are properly
granted in part and denied in part. Specifically, Count I is dismissed, and Counts II through IV will
proceed, barring the parties’ ability to mutually agree upon an attorney fee and costs award without
the necessity of another motion. An Order will be entered consistent with this Opinion.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Date: May 14, 2014

18