Rohrbaugh et al v. Lincoln Intermediate Unit et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RANAY ROHRBAUGH, by and through
LINDA ROHRBAUGH and JAMES
ROHRBAUGH as Parents and Natural
Guardians and in their own right,
Plaintiffs,
v.
LINCOLN INTERMEDIATE UNIT,
WEST YORK AREA SCHOOL
DISTRICT, and MARYANNE KREUZ,
Defendants,
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1:16-cv-2358
Hon. John E. Jones III
MEMORANDUM & ORDER
June 16, 2017
Presently pending before the Court are two motions to dismiss filed by the
Defendants. (Docs. 21, 23). Plaintiffs are Ranay Rohrbaugh (“Ranay”), a minor, by
and through her parents Linda and James Rohrbaugh, and Linda and James
Rohrbaugh individually. Defendants are Lincoln Intermediate Unit (“Lincoln”),
West York Area School District (“West York”), and Maryanne Kreuz. Plaintiffs
filed an amended complaint on January 27, 2017. (Doc. 16). Count I is against all
Defendants and claims a violation of Section 504 of the Rehabilitation Act, 29
U.S.C. § 794. (“Section 504”). Count II is against all Defendants and claims a
violation of Due Process, 42 U.S.C. § 1983. Count III is against Kreuz only and
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claims assault and battery under Pennsylvania common law. West York filed a
motion to dismiss on February 10, 2017, along with a brief in support. (Docs. 21,
22). Lincoln and Kreuz also filed a motion to dismiss and a brief in support on
February 10, 2017. (Docs. 23, 24). Plaintiffs filed a brief in opposition to both
motions on March 13, 2017. (Doc. 29). The Defendants filed replies on March 27,
2017. (Docs. 31, 32). The motions are fully briefed and ripe for our review. For the
reasons that follow, the motions are granted and the case closed.
I.
BACKGROUND
The parties do not dispute that Ranay is, and was at all times, disabled
pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 14001482 (“IDEA”), and Section 504. (Doc. 16, ¶ 10). Ranay has been in special
education programs in West York since elementary school, which are provided by
Lincoln. (Id., at ¶ 13). Ranay had an Individualized Education Plan (“IEP”), which
noted her continued need for a Personal Care Assistant (“PCA”). (Id., at ¶ 16). The
IEP noted the need for a PCA to implement her behavior intervention plan and
safety in the school environment. (Id.). The behavior intervention plan requires the
use of de-escalation techniques rather than physical intervention. (Id., at ¶ 18).
Similarly, Ranay’s IEP did not include the use of restraints. (Id., at ¶ 17).
On October 17, 2013, Ranay became aggressive in her classroom, but deescalation techniques were successful and no physical restraint was used. (Id., at ¶
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20). On November 7, 2014, Ranay’s PCA was Kreuz, who had been recently hired
by Lincoln and been Ranay’s PCA for a short time. (Id., at ¶ 21).
During lunchtime in the school cafeteria on November 7, 2014, Kreuz
applied a restraint on Ranay, causing bruising and scratches on Ranay’s arms,
neck, and face. (Id., at ¶ 22). The use of the restraint was not authorized by the IEP
or any other legitimate purpose, and it was applied incorrectly and inappropriately
such that it caused injury to Ranay. (Id., at ¶ 25). Contrary to Lincoln’s policies,
the daily report prepared by Kreuz and sent home with Ranay did not make
mention of the use of the restraint. (Id., at ¶ 27).
Ranay’s classroom teacher, Tabitha Miller, prepared a “Report of Restraint”
and provided it to Lincoln and West York. (Id., at ¶ 28). Miller called Ranay’s
mother after school that same day, on November 7, 2014, to inform her of Kreuz’s
use of a restraint on Ranay. (Id., at ¶ 29). In their amended complaint, Plaintiffs
allege that Lincoln and West York failed to properly train Kreuz for her position as
Ranay’s PCA. (Id., at ¶ 31).
In Count I, Plaintiffs claim that the Defendants “subjected Ranay to
discrimination compared to similarly situated students with IEPs and PCAs, and as
compared to all West York Area School District Students,” in violation of Section
504 of the Rehabilitation Act. (Id., at ¶ 41). Count II is brought pursuant to § 1983
and alleges that the Defendants “violated Ranay’s 14th Amendment right to bodily
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integrity.” (Id., at ¶ 49). Counts I and II are brought by all Plaintiffs. Finally, Count
III is on behalf of Ranay only and alleges assault and battery against Kreuz. (Id., at
¶¶ 56-60).
II.
STANDARD OF REVIEW
A. Rule 12(b)(1) Standard
When considering a motion to dismiss under Rule 12(b)(1), a court must
distinguish between facial and factual challenges to its subject matter jurisdiction.
See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id.
“In reviewing a facial attack, the court must only consider the allegations of the
complaint and documents referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). A factual attack, in contrast,
challenges jurisdiction based on facts apart from the pleadings. Mortensen, 549
F.2d at 891. “When a defendant attacks subject matter jurisdiction ‘in fact,’ ... the
Court is free to weigh the evidence and satisfy itself whether it has power to hear
the case. In such a situation, ‘no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.’” Carpet Group
Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3d Cir. 2000) (quoting
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Mortensen, 549 F.2d at 891). Here, the Defendants’ motions present a factual
attack on subject matter jurisdiction due to Plaintiffs’ alleged failure to exhaust
administrative remedies. See Jupiter v. United States, 2014 WL 2505670, at *2
(M.D. Pa. May 28, 2014) (Caputo, J.).
B. Rule 12(b)(6) Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept
all factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d
361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule
12(b)(6), a court generally should consider only the allegations in the complaint, as
well as “documents that are attached to or submitted with the complaint, . . . and
any matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, [and] items appearing in the record
of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a
short and plain statement of the claim showing that the pleader is entitled to relief,
“in order to give the defendant fair notice of what the claim is and the grounds
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upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked
by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to
relief above the speculative level….” Victaulic Co. v. Tieman, 499 F.3d 227, 235
(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the
plausibility standard, the complaint must indicate that defendant’s liability is more
than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
formalized in Iqbal, a district court must first identify all factual allegations that
constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,
550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”
and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the …
complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking
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these allegations as true, the district judge must then determine whether the
complaint states a plausible claim for relief. See id.
However, “a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8
“does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Id. at 234.
III.
DISCUSSION
West York moves for the dismissal of Counts I and II on two grounds: (1)
this Court lacks subject matter jurisdiction because Plaintiffs did not exhaust
administrative remedies under the IDEA; and (2) the claims are barred by the
applicable statute of limitations. (Doc. 24, p. 6). Lincoln and Kruez similarly argue
that all counts must be dismissed due to Plaintiffs’ failure to exhaust their
administrative remedies and because they are barred by the statute of limitations.
(Doc. 22, pp. 4-5). Lincoln and Kruez also argue that Count III against Kruez must
be dismissed because she has immunity. (Id., at p. 14). We start first with the issue
of administrative exhaustion, as our ruling on this matter renders consideration of
the other arguments unnecessary. We find that the Plaintiffs are required to exhaust
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administrative remedies with the IDEA before consideration of the claims by a
court and will therefore dismiss the matter without prejudice.
The IDEA ensures “that all children with disabilities have available to them
a free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). Recognizing the
existence of other laws designed to protect children with disabilities, Section
1415(l) states “[n]othing in this chapter 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.” 20 U.S.C. § 1415(l). The section goes on, however, to specifically
state 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.” Id.
The Supreme Court recently addressed the scope of this administrative
exhaustion requirement in Fry v. Napoleon Community Schools, et. al., 137 S. Ct.
743 (2017). The Court held that “exhaustion is not necessary when the gravamen
of the plaintiff’s suit is something other than the denial of the IDEA’s core
guarantee – what the Act calls a ‘free appropriate public education.’” Fry, 137 S.
Ct. at 748. (hereinafter “FAPE”). Specifically, the Court stated:
We first hold that to meet the statutory standard, a suit must seek
relief for the denial of a FAPE, because that is the only “relief” the
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IDEA makes “available.” We next conclude that in determining
whether a suit indeed “seeks” relief for such a denial, a court should
look to the substance, or gravamen, of the plaintiff’s complaint.
Id., at 752. The Court went on to provide some guidance on how courts can
determine whether the “crux” or the “gravamen” of a plaintiff’s complaint charges
the denial of a FAPE, “setting aside any attempts at artful pleading.” Id., at 755.
The first step is to examine the complaint itself, although “[t]he use (or non-use) of
particular labels and terms is not what matters.” Id. The inquiry does not ride on
whether a complaint includes words like FAPE or IEP, or whether it invokes the
IDEA at all. Id. The proper inquiry is “if she is in essence contesting the adequacy
of a special needs program.” Id.
“In addressing whether a complaint fits that description, a court should
attend to the diverse means and ends of the statutes covering persons with
disabilities – the IDEA on one hand, the ADA and Rehabilitation Act (most
notably) on the other.” Id. The Court noted that the IDEA protects only children
and concerns only their schooling, whereas the ADA protects people with
disabilities of all ages both in and outside of school. Id., at 756. “In short, the
IDEA guarantees individually tailored educational services, while Title II and §
504 promise non-discriminatory access to public institutions.” Id. While there is of
course some overlap in coverage, the statutory differences illustrate whether the
complaint seeks relief for IDEA’s obligation to provide a FAPE. Id.
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The Court instructs that “[o]ne clue to whether the gravamen of a complaint
against a school concerns the denial of a FAPE” can be found based on the answers
to a pair of hypothetical questions.” Id., at 756.
First, could the plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that was not a
school—say, a public theater or library? And second, could an adult at
the school—say, an employee or visitor—have pressed essentially the
same grievance? When the answer to those questions is yes, a
complaint that does not expressly allege the denial of a FAPE is also
unlikely to be truly about that subject; after all, in those other
situations there is no FAPE obligation and yet the same basic suit
could go forward. But when the answer is no, then the complaint
probably does concern a FAPE, even if it does not explicitly say so;
for the FAPE requirement is all that explains why only a child in the
school setting (not an adult in that setting or a child in some other) has
a viable claim.
Id. Finally, the Court instructs to look to “the history of the proceedings. In
particular, a court may consider that a plaintiff has previously invoked the IDEA's
formal procedures to handle the dispute.”
Only a handful of courts have rendered opinions analyzing the requirement
of IDEA administrative exhaustion post-Fry. See, e.g., J.M. v. Francis Howell Sch.
Dist., 850 F.3d 944 (8th Cir. 2017) (holding administrative exhaustion required for
complaint based on school repeatedly placing student in physical restraints and
isolation); K.G. by & through Gosch v. Sergeant Bluff-Luton Cmty. Sch. Dist.,
2017 WL 1098829 (N.D. Iowa Mar. 23, 2017) (holding administrative exhaustion
was not required for complaint based on teacher dragging student across the
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carpeted floor); N.S. by & through J.S. v. Tennessee Dep't of Educ., 2017 WL
1347753 (M.D. Tenn. Apr. 12, 2017) (finding that, under a Fry analysis, the
complaint alleging overuse and misuse of physical restraints and isolation does
seek the denial of a FAPE, but that an independent exception to exhaustion
applied); Parrish v. Bentonville Sch. Dist., 2017 WL 1086198 (W.D. Ark. Mar. 22,
2017) (holding administrative exhaustion required for complaint based on physical
restraints and isolation). Of that small handful, three courts have held that
complaints based on the use of physical restraints on disabled students in school
required administrative exhaustion. See Francis Howell Sch. Dist., 850 F.3d at
950; Tennessee Dep't of Educ., 2017 WL 1347753 at *11; Parrish, 2017 WL
1086198 at *31.
Applying the analysis delineated by the Supreme Court in Fry, and
consulting the few other opinions rendered post-Fry, we hold that the gravamen of
the Plaintiffs’ amended complaint concerns the denial of a FAPE, and Plaintiffs
must therefore exhaust their administrative remedies with the IDEA before
bringing civil suit.
Starting first with Plaintiffs’ amended complaint, as Fry instructs, we note
several allegations of significance. First, the parties were identified in accordance
with their IDEA definitions; Ranay was classified as “‘disabled’ pursuant to the
IDEA” and West York as a “‘Local Education Agency’ pursuant to the IDEA”.
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(Doc. 16, ¶¶ 7, 10). Second, the amended complaint states that Ranay’s IEP notes
her continued need for a PCA and for implementation of her behavioral
intervention plan which requires the use of de-escalation techniques rather than the
use of physical intervention. (Id., at ¶¶ 15-18). It also notes that her “IEP did not
include the use of restraints.” (Id., at ¶ 17). Third, the amended complaint alleges
“Ranay was subjected to discrimination denied the benefits of her IEP and other
education services on account of her disability” and alleges discrimination
“compared to similarly situated students with IEPs and PCAs.” (Id., at ¶¶ 39, 41).
Next, it is significant to note that the amended complaint alleges that “[t]he
restraint was improper because it was not authorized by the IEP . . .” (Id., at ¶ 25)
(emphasis added). In a similar vein, the amended complaint alleges that “[t]he
application of a physical restraint on November 7, 2014, was not necessary
because, among other reasons, de-escalation tactics had not yet failed and Ranay
was not a serious harm to herself.” (Id., at ¶ 52) (emphasis added). It is clear that
Plaintiffs do not allege that the use of physical restraints on Ranay in general is
violative of her rights, but that this particular use by Kreuz was not in accordance
with the school’s policies or her IEP.
Throughout the amended complaint, Plaintiffs make clear that their claims
are, in essence, a charge that Ranay was provided with an ineffective PCA:
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“Each failed to properly instruct Kreuz regarding Ranay’s IEP,
specifically the requirement of de-escalation techniques and not to use
physical restraints without proper justification.” (Id., at ¶ 31a).
“Each failed to properly train Kreuz on the proper application of
physical restraints and the appropriate circumstances for their use.”
(Id., at ¶ 31b).
“Each failed to train Kreuz and/or failed to ensure Kreuz was properly
and appropriately trained to function as a full-time personal care
assistant . . .” (Id., at 31d).
“Kruez, due to her lack of proper training and placement with a
student of Ranay’s disability and educational needs . . .” (Id., at ¶ 33).
Defendants were aware “of the need to train employees in the proper
limited application of restraints.” (Id., at ¶ 44).
“[D]efendants were deliberately indifferent to the need for proper
training and instruction to be provided to Kruez . . .” (Id., at ¶ 49).
“[D]efendants’ failure to provide proper training and instruction, as
set forth more fully above, shocks the conscious . . .” (Id., at ¶ 51).
The Defendants’ obligation to provide Ranay with an effective PCA, as
required by her IEP, is squarely within the IDEA’s guarantee to provide a FAPE.
The allegation that Kreuz was improperly trained to serve as Ranay’s PCA directly
challenges the services provided to Ranay, such that the Plaintiffs are “in essence
contesting the adequacy of a special needs program.” Fry, 137 S. Ct. at 755. We
also note that in their brief in opposition, in a section discussing exceptions to
administrative exhaustion, Plaintiffs specifically state, “Plaintiffs’ complaint for
damages resulting from Ranay’s Personal Care Assistant’s single use of an illegal
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restraint is best characterized as a failure of implementation of Ranay’s IEP.”
(Doc. 29, p. 9).
Another indicator that the amended complaint seeks relief for a denial of a
FAPE is the Plaintiffs’ citation to 22 Pa. Code §711.46. (Doc. 16, ¶¶ 49, 50).
Section 711 of Title 22 of the Pennsylvania Administrative Code “specifies how
the Commonwealth, through the Department, will meet its obligation to ensure that
charter schools and cyber charter schools comply with IDEA and its implementing
regulations …” 22 Pa. Code § 711.2. Plaintiffs quote to language from the specific
section of the code that concerns the strictures of using physical restraints in
compliance with the IDEA and individual IEPs. (Doc. 16, ¶¶ 49, 50). Plaintiffs’
use of IDEA standards to illustrate the wrongfulness of the Defendants’ conduct
further supports the conclusion that the gravamen of the amended complaint
charges a denial of a FAPE and falls within the purview of the IDEA
administrative process.
Finally, turning to the pair of hypothetical questions provided by the Court
in Fry, we now consider whether Plaintiffs could have brought essentially the same
claim if the conduct occurred outside of a school and whether an adult at the school
could have brought the same claim. Fry, 137 S. Ct. at 756. The answer to both of
these questions is no. As the court in Tennessee Department of Education
recognized, “restraint techniques are not implemented on adult employees or
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visitors of the . . . schools, nor are they implemented on minors such as the
plaintiffs in other public institutions.” 2017 WL 1347753 at *11. The conduct
alleged in Plaintiffs’ amended complaint is unique to a disabled student at school,
which indicates that “the complaint probably does concern a FAPE, even if it does
not explicitly say so.” Fry, 137 S. Ct. at 756.
Considering all of these factors, we find that the Plaintiffs’ amended
complaint seeks relief available under the IDEA- namely, the denial of a FAPE to
Ranay. As such, the claims are subject to exhaustion, barring an applicable
exception.
Plaintiffs argue that they are excused from complying with the exhaustion
requirement because it would be futile and inadequate. (Doc. 29, pp. 8-10). In
support, Plaintiffs highlight that the incident was a singular episode of physical
harm, the incident did not cause educational harm, and the administrative process
cannot remedy anything because Ranay’s IEP has always been appropriate in not
authorizing physical restraints. (Id., at p. 8). Plaintiffs cite to Joseph M. v.
Northeastern Educational Intermediate Unit 19, 516 F. Supp. 2d 424 (M.D. Pa.)
(Caputo, J.) in support of their argument that the futility exception applies. (Doc.
29, p. 8). There, the court held that “[w]hile a challenge to the contents of an IEP
would require exhaustion of administrative remedies . . . exhaustion of
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administrative remedies when a plaintiff is challenging only a failure to implement
an IEP would prove fruitless.” Joseph M., 516 F. Supp. 2d at 438.
However, in light of an intervening decision by the Third Circuit, the Joseph
M. court reversed this holding on a motion for reconsideration, recognizing that
“[t]he Third Circuit Court of Appeals specifically held that there was a remedy
under IDEA for violations of ‘the provision of a free appropriate public education,’
regardless of the underlying basis for such a violation.” Joseph M. v. Ne. Educ.
Intermediate Unit 19, 2007 WL 2845004, at *3 (M.D. Pa. Sept. 26, 2007) (citing
A.W. v. The Jersey City Public Schools, 486 F.3d 791 (3d Cir.2007)). Joseph M.
therefore provides no support for finding that Plaintiffs are exempt from
administrative exhaustion due to futility.
Circumstances that warrant the application of the futility exception include
the Plaintiffs previously utilizing the IDEA administrative process, a fully
developed factual record and resolved evidentiary issues, where the only issue left
for determination is damages, and where the IDEA cannot provide a suitable
remedy for the harms alleged. Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d
266, 281 (3d Cir. 2014). Plaintiffs have not adequately established that any of these
circumstances apply. Because we have found that the gravamen of the Plaintiff’s
amended complaint seeks relief for the denial of a FAPE, the IDEA administrative
process is the proper avenue to pursue those claims. Accordingly, Counts I and II
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shall be dismissed, without prejudice, for failure to exhaust administrative
remedies.
Finally, the court will decline to exercise supplemental jurisdiction over
Ranay’s remaining tort claim against Kreuz pursuant to 28 U.S.C. § 1367(c)(3)
because Plaintiffs’ federal claims will be dismissed. 28 U.S.C. § 1367(c)(3)
provides that district courts may decline to exercise supplemental jurisdiction over
a state law claim when it has dismissed all claims over which it had original
jurisdiction. Indeed, the Third Circuit has held that “where the claim over which
the district court has original jurisdiction is dismissed before trial, the district court
must decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788
(3d Cir. 1995) (emphasis added). We see no reason justifying our exercise of
supplemental jurisdiction over Ranay’s claim of assault and battery against Kreuz.
Therefore, we shall dismiss Count III without prejudice.
IV.
CONCLUSION
In accordance with the foregoing, we shall grant Defendants’ Motions to
dismiss. (Docs. 21, 23). A separate order shall issue in accordance with this ruling.
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