Akron Board of Education v. Wallace et al

Filing 58

Memorandum of Opinion and Order For the reasons set forth herein, Defendant Roderick Linton Belfance, LLP's Motion for Judgment on the Pleadings and/or to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 46 , is denied. Judge Benita Y. Pearson on 11/22/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

AKRON BOARD OF EDUCATION,
Plaintiff,
v.
JASON D. WALLACE, et al.,

Defendants.

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CASE NO. 5:16CV188

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 46]

Pending before the Court is Defendant Roderick Linton Belfance, LLP’s (“RLB”) Motion
for Judgment on the Pleadings and/or to Dismiss for Lack of Subject Matter Jurisdiction. ECF
No. 46. Plaintiff Akron Board of Education (the “Board”) opposes the motion. ECF No. 47.
Defendant replied. ECF No. 48. This case involves an application for attorneys’ fees and costs
in connection with Defendants Jason Wallace, Daniel Bache, RLB, and Wallace & Bache, LLP’s
(collectively “Defendants”) due process complaint filed on behalf of Delaina Barney’s child
against Plaintiff under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C.
§§ 1400–1482. 1 For the reasons set forth below, Defendant RLB’s Motion (ECF No. 46) is
denied and the matter will proceed against the defendants named in the First Amended
Complaint (ECF No. 36).

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See related case, Case No. 5:16-CV-112, infra.

(5:16CV188)

I. Background
On December 15, 2014, Defendants filed an IDEA due process complaint on behalf of
Delaina Barney, the parent of J.B. (“Student”), against the Board challenging Student’s
Individualized Education Program (“IEP”), and alleging that he was not afforded a free
appropriate public education (“FAPE”). ECF No. 36 at PageID#: 535. The complaint was
received by the Ohio Department of Education, and an impartial hearing officer (“IHO”) was
assigned. Id. at PageID#: 538. The remedies sought by Defendants in filing the due process
complaint included attorneys’ fees for themselves, for the parent to be determined the prevailing
party, compensatory education, extended school year services, and education in the least
restrictive environment. Id. On June 11, 2015, the IHO issued a Decision denying the parent’s
due process complaint in its entirety, thereby, entitling the Board to prevailing party status. Id.
at PageID#: 542.
Defendants appealed the decision of the IHO to the state law review officer (“SLRO”).
Id. at PageID#: 546. After reviewing the record, the SLRO issued a Final Decision and Order on
November 9, 2015, affirming the decision of the IHO. Id. The SLRO found that the IHO
conducted the hearing in a fair and appropriate manner. ECF No. 36 at PageID#: 547.
In December 2015, Defendants continued to litigate their due process action by filing a
Notice of Appeal seeking a review of the SLRO's decision in the Summit County, Ohio Court of
Common Pleas, being Case No. CV-2015-12-5779. Id. The Board removed the case to this

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Court on January 19, 2016, on the basis of federal question jurisdiction, identified as Case No.
5:16-CV-112. See ECF No. 1 at PageID#: 2 (Case No. 5:16-CV-112) (related case).
Pending resolution of the administrative appeal, Case No. 5:16-CV-112, Plaintiff Board
filed an action to recover fees in the administrative proceedings under the IDEA. ECF No. 1. On
February 7, 2017, Plaintiff filed a First Amended Complaint to recover attorneys’ fees and costs
against Defendants, while adding a new party—Defendant Wallace & Bache LLP, and clarifying
their new address. ECF No. 36. Pursuant to the Court’s Case Management Order (ECF No. 31),
the Court stayed proceedings in this case until the final resolution of the administrative appeal,
Case No. 5:16-CV-112. On September 22, 2017, the Court rendered judgment in favor of the
Board, granting the Board’s Motion for Judgment on the Administrative Record, and affirming
the determinations of the IHO and SLRO. ECF Nos. 36 and 37 (Case No. 5:16-CV-112) (related
case).
On May 5, 2017, Defendant RLB filed a Motion for Judgment on the Pleadings and/or to
Dismiss for Lack of Subject Matter Jurisdiction. ECF No. 46. Plaintiff Board responded, ECF
No. 47, and Defendant replied, ECF No. 48. For the reasons set forth below, the Court denies
Defendant’s Motion (ECF No. 46).
II. Standard of Review
Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed—but early enough
not to delay trial—a party may move for judgment on the pleadings.” A motion for judgment on
the pleadings under Rule 12(c) is reviewed under the same standard applicable to a motion to
dismiss under Rule 12(b)(6). Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir.

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(5:16CV188)
2008). “To survive a [Rule 12(b)(6)] motion to dismiss, [the complaint] must allege ‘enough
facts to state a claim to relief that is plausible on its face.’” Traverse Bay Area Intermediate Sch.
Dist. v. Michigan Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell Atl. v.
Twombly, 550 U.S. 544, 570 (2007)). “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, 677 (2009). A court may dismiss a
claim if its finds on the face of the pleading that “there is an insurmountable bar to relief
indicating that the plaintiff does not have a claim[,]” Ashiegbu v. Purviance, 76 F. Supp.2d 824,
828 (S.D. Ohio 1998), aff’d 194 F.3d 1311 (6th Cir. 1999), cert. denied, 529 U.S. 1001 (2000).
“For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true.” Wurzelbacher v. JonesKelley, 675 F.3d 580, 583 (6th Cir. 2012) (quoting Tucker v. Middleburg-Legacy Place, LLC,
539 F.3d 545, 549 (6th Cir. 2008)). The Court “‘must construe the complaint in the light most
favorable to [the] plaintiff[.]’” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (quoting
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)).
III. Discussion
Defendant RLB moves for judgment on the pleadings and/or to dismiss Plaintiff’s First
Amended Complaint on the bases that 20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III) do not expressly
impose vicarious liability on law firms; Plaintiff’s action was not timely commenced within the
alleged applicable statute of limitations; Plaintiff lacks standing to file a fee action under the
IDEA; the Court is not authorized to award hearing officer and transcription fees as “costs” under

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(5:16CV188)
20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III); and, Plaintiff’s First Amended Complaint fails to plead
facts that are sufficient to state a claim for relief under 20 U.S.C. § 1415(i)(3)(B)(i)(III). ECF
No. 46. Each argument fails and is addressed in turn.
A. Law Firm Liability Under 20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III)
Defendant argues that because 20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III) do not explicitly
state that a “court may award reasonable attorneys’ fees as part of the costs to a prevailing party .
. . against the attorney of a parent who files a complaint or subsequent cause of action that is
frivolous,” as well as against a law firm, that it should be dismissed from this action. ECF No.
46-1 at PageID#: 713–14 (citing 20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III)).2 In addition to
statutory guidance, however, the Court also looks to the rules governing federal civil procedure.
Fed. R. Civ. P. 11(c)(1) states that “[a]bsent exceptional circumstances, a law firm must be held
jointly responsible for a violation committed by its partner, associate, or employee.” In reliance,
Plaintiff aptly argues that under Fed. R. Civ. P. 11, “[t]he Court's ‘inherent authority’ to order
sanctions of attorneys’ fees is equally applicable to a party and the party’s law firm for advancing
meritless claims in bad faith or for an improper purpose.” ECF No. 47 at PageID#: 739 (citing
Stalley v. Mountain States Health All., 2010 WL 446929, *3 (E.D. Tenn. Feb. 2, 2010), aff'd sub
nom. Stalley ex rel. U.S. v. Mountain States Health All., 644 F.3d 349, 351 (6th Cir. 2011)).

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While there is limited case law on the issue of whether 20 U.S.C. §
1415(i)(3)(B)(i)(II) and (III) impose liability at the law firm level, Plaintiff provides
persuasive authority in which federal courts have considered and imposed liability against
attorneys and their law firms that participate in the IDEA’s administrative proceedings
and against whom fees are sought pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(II) and (III).
See ECF No. 47 at PageID#: 739–740 (emphasis added).
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Furthermore, the Court’s authority to order sanctions against RLB pursuant to 28 U.S.C. § 1927
is certainly applicable to this case, although not currently a basis of Plaintiff’s IDEA fee petition.
Defendants Daniel Bache and Jason Wallace were employed as attorneys by Defendant
RLB at the time the original IDEA due process complaint was filed against the Board. ECF No.
36. Having determined, in the related administrative appeal before this Court, Case No.
5:16-CV-112, that Defendants’ due process complaint was frivolous, unreasonable, and without
foundation when filed, the Court rendered judgment in favor of Plaintiff. See ECF Nos. 36 and
37 (Case No. 5:16-CV-112) (related case). Because Defendant RLB was fully aware that its
associates at the time—Defendants Daniel Bache and Jason Wallace—initiated the due process
complaint and continued to litigate its claims even after it had become patently obvious that their
claims were meritless, Defendant RLB must also be held responsible for its former associates’
advocacy of such claims against Plaintiff. The question remaining is what liability attaches after
the administrative proceedings.
Defendant's motion for judgment on the pleadings is denied. While there may be a dearth
of precedence establishing an award of fees against a law firm under 20 U.S.C. § 1415, that
avenue is not foreclosed.3 Also, it is clear the Court sua sponte or by properly served separate
motion, may impose sanctions under Rule 11. And, 28 U.S.C. § 1927, whether invoked or not by
Plaintiff, also remains a viable option. At the appropriate time, the parties will submit briefing

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As Plaintiff punctuates: “No legal authority has been submitted to this Court by
Defendant that exempts law firms who engage in the business of suing school districts in
special education due process hearings brought pursuant to the IDEA from having an
interest in actions brought forth pursuant to the fee shifting provision under the same
IDEA.” ECF No. 47 at PageID#: 738.
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(5:16CV188)
on the issue of whether and how any liability, judgment or sanctions, monetary or otherwise,
should be determined and apportioned among the individual attorneys and the law firms that
employed them.4
B. Plaintiff Timely Commenced its IDEA Fee Action
At dispute is whether Plaintiff’s fee action was timely filed. In its First Amended
Complaint, Plaintiff seeks an award of attorneys’ fees and costs pursuant to 20 U.S.C. §
1415(i)(3)(B)(II) and (III). ECF No. 36. Defendant moves to dismiss Plaintiff’s Amended
Complaint by arguing that it is barred by Ohio Revised Code (“O.R.C.”) §§ 119.092(C) and
119.12 that together provide a 45-day limitations period for a prevailing party of an
administrative proceeding to commence an action in court to recover attorneys’ fees and costs.
ECF No. 46-1 at PageID#: 718.
The IDEA specifies that a party aggrieved by administrative findings and decisions made
under the IDEA has a right to appeal the administrative findings by bringing an action in federal
court. 20 U.S.C. § 1415(i)(2)(A). In 2004, Congress amended the IDEA to add current
subparagraph (i)(2)(B), which provides that, such actions must be brought within 90 days from
the date of the hearing officer’s decision or in such time as explicitly provided by state law for
bringing such actions. D.G. ex rel. LaNisha T. v. New Caney Indep. Sch. Dist., 806 F.3d 310,
313 (5th Cir. 2015). “Prior to that amendment, the [IDEA] did not specify any limitations period

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The Court grants Plaintiff’s motion for a telephonic status conference. ECF 54.
A separate order will issue scheduling that event.
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(5:16CV188)
for the filing of a civil action by an aggrieved party, and courts borrowed statutes of limitations
from state law.” Id. at 313; see 20 U.S.C. § 1415(i)(2)(B).
The IDEA does not authorize the recovery of attorneys’ fees by the prevailing party in
administrative proceedings. D.G. ex rel. LaNisha T., 806 F.3d at 318. Rather, Congress
provided independent court action for such relief with no express statute of limitations for these
actions. See 20 U.S.C. § 1415(i)(3)(B). “The Senate Report detailing the [IDEA] amendments
that included current § 1415(i)(2)(B) explains that the Act as amended ‘contains a new provision,
. . . which gives a party 90 days from the date of the decision of the hearing officer for appealing
a due process hearing decision to State or federal district court, or if there is an explicit State
time limitation set out by State statute or regulation, in such time as the State law allows.’” D.G.
ex rel. LaNisha T., 806 F.3d at 318 (citing S. Rep. No. 108–185, at 42 (2003)) (emphasis added).
This Senate Report implies that Congress intended the IDEA’s limiting statute to apply
exclusively to due process appeals to federal court and not to separate fee actions. Id.; see G–N
v. City of Northampton, 60 F. Supp. 3d 267, 269 (D. Mass. 2014); Brandon E. v. Dep’t of Educ.,
621 F. Supp. 2d 1013, 1016 (D. Haw. 2008).
Accordingly, for causes of actions for attorneys’ fees created before December 1, 1990
and with no express limitations period, “[i]t is the usual rule that . . . a court ‘borrows’ or
‘absorbs’ the local time limitation most analogous to the case at hand.” D.G. ex rel. LaNisha T.,
806 F.3d at 319 (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350,
355 (1991) superseded by statute on other grounds as stated in Merck & Co., Inc. v. Reynolds,
559 U.S. 633 (2010)). “‘State limitations periods,’ however, ‘will not be borrowed if their

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(5:16CV188)
application would be inconsistent with the underlying policies of the federal statute.’” Id.
(quoting Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367 (1977)). Federal law may
be borrowed instead “only ‘when a rule from elsewhere in federal law clearly provides a closer
analogy than available state statutes, and when the federal policies at stake and the practicalities
of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.’”
Id. at 319–320 (quoting Reed v. United Transp. Union, 488 U.S. 319, 324 (1989)).
Defendant first contends that the most analogous state provision is the 15-day period for
appealing an adverse agency decision provided under O.R.C. § 119.092(C). ECF No. 46-1 at
PageID#: 717. Defendant asserts that the cutoff set forth in O.R.C. § 119.092(C) for filing such
an appeal is “the period specified in section 119.12[D] of the Revised Code.” Id. As set forth in
O.R.C. § 119.12(D), an appeal by a party adversely affected by an agency decision shall be filed
within 15 days after the mailing of the notice of the agency’s order. See O.R.C. § 119.12(D).
Defendant then goes on to argue that in combining the 15-day limitations period, as described
above, with the 30-day limitation period under O.R.C. § 119.092(B)— that gives a party 30 days
after an award where it is the prevailing party to file a request for fees with the agency— a
prevailing party of an administrative proceeding ultimately has a combined 45-day limitations
period to commence an action in court to recover attorneys’ fees. ECF No. 46-1 at PageID#:
717–18.
As Plaintiff asserts in its opposition, the Court need not determine which state statute of
limitations is most analogous in this situation. ECF No. 47 at PageID#: 745. In looking at the
handful of cases that have considered this narrow issue interpreting the 2004 amendments to the

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IDEA, the Court adopts the approach taken by the Fifth, Seventh, and Eighth Circuits, “that the
time limit for a party that prevails at an administrative IDEA hearing to seek attorneys’ fees does
not begin to run until the aggrieved party’s time for challenging the hearing officer’s decision
expires.” D.G. ex rel. LaNisha T., 806 F.3d at 320; see Brittany O. v. Bentonville Sch. Dist., 683
F. App’x 556, 558 (8th Cir. 2017); McCartney C. ex rel. Sara S. v. Herrin Cmty. Unit Sch. Dist.
No. 4, 21 F.3d 173, 175–76 (7th Cir. 1994). “Upon expiration of this period, an administrative
decision becomes final, and the parties know who is the prevailing party.” Brittany O., 683 F.
App’x at 558. Here, the 90-day cutoff for the aggrieved party— the Parent— to challenge the
November 9, 2015 state level review officer’s decision was February 17, 2016. See ECF No. 36
at PageID#: 546, ¶ 74. Therefore, Plaintiff’s complaint was timely filed on January 26,
2016—78 days from the state level review officer’s decision, and well before the 90-day cutoff
for Parent (the aggrieved party) to challenge the hearing officer’s decision expired. ECF No. 47
at PageID#: 746.
Accordingly, Defendant’s motion to dismiss is denied.
C. Standing
At issue is whether Plaintiff is a “prevailing party” under the IDEA pursuant to 20 U.S.C.
§ 1415(i)(3)(B)(i)(II) and (III). The IDEA provides 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 . . . to a prevailing party who is a State educational agency or local educational agency . . .
.” 20 U.S.C. § 1415(i)(3(B)(i)(II) and (III). “A ‘prevailing party’ is one who ‘succeed[s] on any
significant issue in litigation which achieves some of the benefit the parties sought in bringing

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suit.’” Keene v. Zelman, 337 F. App'x 553, 556 (6th Cir. 2009) (citing Tompkins ex rel. A.T. v.
Troy Sch. Dist., 199 F. App'x 463, 465 (6th Cir. 2006) (quoting Hensley v. Eckerhart, 461 U.S.
424, 433 (1983))). “Such success alone, however is not enough. The term ‘prevailing party’ also
requires that there be ‘a court-ordered ‘change [in] the legal relationship between [the plaintiff]
and the defendant.’’” Tompkins ex. rel. A.T. v. Troy Sch. Dist., 199 F. App'x 463, 466 (6th Cir.
2006) (emphasis added) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health
& Human Res., 532 U.S. 598, 604 (2001) (quoting Tex. State Teachers Ass'n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 792 (1989))). “Both judgments on the merits and ‘settlement
agreements enforced through a consent decree’ qualify as ‘court-ordered’ changes with ‘the
necessary judicial imprimatur.’” Id. (citations omitted).
Defendant argues that because the resolution of the administrative appeal action, Case
No. 5:16-CV-112, was pending before this Court, at the time Plaintiff filed its initial complaint
for fees, Plaintiff could not be a prevailing party. ECF No. 46-1 at PageID#: 719. This
argument, however, is now moot because on September 22, 2017, the Court ruled in favor of
Plaintiff in Case No. 5:16-CV-112. See ECF No. 36 (Case No. 5:16-CV-112) (related case).
Therefore, Plaintiff is the prevailing party, and Defendant’s motion to dismiss for lack of
standing, is denied as moot. The Court need not further consider the issue.
D. Plaintiff's Award of Costs (i.e., Hearing Officer Fees and Transcripts) under 20
U.S.C. § 1415(i)(3)(B)(i)(II) and (III)
In addition to attorneys’ fees, Plaintiff seeks to recover expenses, related to hearing
officer fees and transcripts, against Defendants pursuant to the IDEA’s fee-shifting provision.
ECF No. 36 at PageID#: 555. This provision states that “the court, in its discretion, may award
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reasonable attorneys’ fees as part of the costs . . . to a prevailing party who is a State educational
agency or local educational agency . . . .” 20 U.S.C. § 1415(i)(3(B)(i)(II) and (III). The Sixth
Circuit has held that a district court has “wide discretion” in awarding the prevailing party costs
and attorneys’ fees. Utica Cmty. Sch. v. Alef, 2017 WL 4461075, at *3 (6th Cir. Oct. 6, 2017).
In Utica Community Schools v. Alef, the Sixth Circuit concluded that administrative
hearing costs are included within the term “costs” under the IDEA. Id. at *1–2; see Fox v. Vice,
563 U.S. 826 (2011) (holding that under 42 U.S.C. § 1988 a court may grant reasonable fees to
the defendant where the plaintiff asserted both frivolous and non-frivolous claims, “but only for
costs that the defendant would not have incurred but for the frivolous claims”); Krichinsky By &
Through Krichinsky v. Knox Cty. Sch., 963 F.2d 847, 849–50 (6th Cir. 1992) (explaining that the
IDEA’s fee-shifting provision is interpreted by analogy to 42 U.S.C. § 1988, the attorney fee
provision for civil rights actions). As the prevailing party of the administrative proceedings,
Plaintiff seeks expenses that include the request for “$26,673.26 in costs related to court reporter
and hearing officer fees incurred in the administrative proceedings” for Defendants’ frivolous
due process complaint. ECF No. 36 at PageID#: 555. Accordingly, the Court has “wide
discretion” to consider Plaintiff’s request for such costs under 20 U.S.C. § 1415(i)(3)(B)(i)(II)
and (III). See Utica Cmty. Sch., 2017 WL 4461075 at *3.
E. Plaintiff Successfully Plead Sufficient Facts to State a Claim for Relief Under 20
U.S.C. 1415(i)(3)(B)(i)(III)
In Plaintiff's First Amended Complaint, Plaintiff seeks attorneys’ fees and costs from
Defendants under 20 U.S.C. § 1415(i)(3)(B)(i)(III), which provides, in pertinent part, that “[i]n
any action brought under this section, the court, in its discretion, may award reasonable
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attorneys’ fees as part of the costs—(III) to a prevailing party who is a . . . state educational
agency or local educational agency against the attorney of a 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.” 20 U.S.C. §
1415(i)(3)(B)(i)(III).
In support of its relief sought, Plaintiff references, in its First Amended Complaint, the
IHO’s findings that “it became apparent through the course of the hearing that the due process
complaint was ‘hastily thrown together’ by Defendants’” Defendants “failed to produce any
credible evidence” on their claims, and that[,] although she did not have the authority to issue
sanctions against Defendants for their bad faith actions by continuing to litigate meritless claims,
“the weakness of Defendants’ case as presented was so glaring, that [she] would be remiss not to
acknowledge [the Board’s] valid concerns.” ECF No. 36 at PageID#: 543,¶¶ 50, 52; Id. at
PageID#: 545, ¶ 67. Plaintiff then alleges that despite the IHO’s findings, Defendants continued
to litigate the same issues in their due process complaint that were found to be frivolous,
unreasonable, and without foundation. See id. at PageID#: 546, ¶ 69. Plaintiff next provides the
findings of the SLRO, who affirmed the IHO’s decision, that “Defendants failed to carry their
burden of proof on every issue brought forth in their due process complaint, entitling the Board
to prevailing party status.” Id. at PageID#: 546–47, ¶ 74. In disregarding the findings of two
hearing officers, Defendants continued to improperly litigate this case by filing yet another
appeal to the Summit County, Ohio Court of Common Pleas Common, which was removed to
federal court. See ECF No. 1 (Case No. 5:16-CV-112) (related case).

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Defendant contends that Plaintiff failed to plead sufficient facts to state a claim for relief
under 20 U.S.C. § 1415(i)(3)(B)(i)(III) and, therefore, Plaintiff’s First Amended Complaint fails
as analyzed under Iqbal. ECF No. 46-1 at PageID#: 722. Defendant emphasizes that “Plaintiff is
required to identify an ‘improper purpose’ for which the parent, through his or her attorney, has
presented the complaint or a subsequent cause of action.” Id.
As evidenced above, Defendant RLB’s arguments do not support dismissal by any means.
Defendants’ due process complaint filed on behalf of Delaina Barney’s child initiated the
administrative proceedings, and, subsequently, opened the door for Plaintiff—the prevailing
party in the administrative proceedings—to seek attorneys’ fees and costs for Defendants’
continued bad faith in litigating frivolous claims for an improper purpose. Therefore, Plaintiff
has pled sufficient facts in its First Amended Complaint to state a claim for relief under 20
U.S.C. § 1415(i)(3)(B)(i)(III).
Lastly, Defendant argues that Plaintiff’s claim for relief under 20 U.S.C. §
1415(i)(3)(B)(i)(III) should be dismissed because Plaintiff did not put Defendant on notice that it
would allege a violation of 20 U.S.C. § 1415(i)(3)(B)(i)(III) in its First Amended Complaint.
See ECF No. 46-1 at PageID#: 722. When considering a motion to dismiss under Fed. R. Civ. P.
12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not
give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Here, Plaintiff’s First Amended
Complaint alleged sufficient factual allegations that gave Defendant fair notice that Plaintiff is
seeking reimbursement of attorneys’ fees and costs under both 20 U.S.C. § 1415(i)(3)(B)(i)(II)

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and 20 U.S.C. § 1415(i)(3)(B)(i)(III), as a result of Defendants’ continued bad faith in pursuing
frivolous and meritless claims for an improper purpose.
Therefore, Defendant’s motion to dismiss is denied.
IV. Conclusion
For the reasons set forth above, Defendant RLB’s Motion for Judgment on the Pleadings
and/or to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 46) is denied.

IT IS SO ORDERED.
November 22, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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