A.C. v. Scranton School District et al
MEMORANDUM (Order to follow as separate docket entry) re 49 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Scranton School District. Signed by Honorable Malachy E Mannion on 3/29/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
A.C., a minor, by JERRY C. and
JENNIFER C., his parents,
CIVIL ACTION NO. 3:15-2198
SCRANTON SCHOOL DISTRICT
and SALISBURY BEHAVIORAL,
Plaintiffs Jerry C. and Jennifer C., individually and on behalf of their
minor son A.C., filed this action alleging that A.C. was discriminated against
and denied his right to a free appropriate public education (“FAPE”) by
defendant Scranton School District (“SSD”) due to his disabilities in violation
of federal law, including the Americans with Disabilities Act and §504 of the
Rehabilitation Act. Plaintiffs also raised federal claims as well as state law
claims against New Story, a private school which provides special education
to students, owned and operated by defendant Salisbury Behavioral Health,
Inc., (collectively “New Story”). Plaintiffs alleged that New Story denied A.C.’s
right to FAPE and subjected him to an inappropriate standard of care as well
as needless use of physical restraints.
Remaining in this case are plaintiffs’ RA and ADA claims, Counts I & II,
against SSD which are based on allegations occurring after April 8, 2013.
Also, plaintiffs’ ADA and RA claims against New Story contained in Counts III
and IV, as well as plaintiffs’ state law claims contained in Counts V and VI of
the complaint remain. (Doc. 40, Doc. 41).
Presently pending before the court is SSD’s motion to dismiss, (Doc.
49), the crossclaims New Story asserted against it alleging that SSD is solely
liable to plaintiffs for any damages they may recover and, is liable over or
jointly and severally liable with New Story under indemnification and
contribution. (Doc. 47 at 25-26). For the following reasons, SSD’s motion to
dismiss will be GRANTED.
Since the complete factual background of this case was detailed in the
court’s June 13, 2016 memorandum, (Doc. 40), it will not be fully repeated
herein. Suffice it to say that plaintiffs’ complaint, (Doc. 1), alleges that A.C. is
a ten year old disabled child with special needs who has been diagnosed with
Mixed Development Disorder, Autistic Spectrum Disorder, Mild Mental
Retardation, ADHD and Mixed Receptive and Expressive Language Disorder.
Based on his disabilities, A.C. is a student eligible for special education
services as provided by the Individuals with Disabilities Educations Act
(“IDEA”). A.C. resides within SSD and is a student of SSD. During the time
that A.C. has been a student of SSD, Jennifer C. made repeated efforts to
work with the administration for the proper placement and appropriate
education of her son. She complained to SSD about the repeated use of
physical restraints on A.C. by SSD staff. Subsequently, SSD transferred A.C.
to New Story, since it was licensed and approved to provide special education
for elementary and secondary students with mental and physical disabilities.
SSD contracts with New Story School to provide education to district students
at New Story’s facility in Throop, Lackawanna County, Pennsylvania.
According to the complaint, New Story is a private academic school which is
licensed and approved to provide special education for elementary and
secondary students with various physical and mental impairments. Jennifer
C. agreed to A.C.’s transfer by SSD to New Story. Plaintiffs allege that after
A.C. was placed at New Story, he was improperly treated, including excessive
use of physical restraints on numerous occasions, and that he did not receive
the appropriate and required care. This treatment allegedly affected A.C.’s
physical and emotional well being and hindered his educational progress.
Plaintiffs’ claim that the treatment at New Story deprived A.C. of his right to
a FAPE and subjected him to an inappropriate standard of care for a child
with his needs and disabilities.
On February 6, 2014, plaintiffs advised SSD that they wanted A.C.
placed in an appropriate setting back within the district, and A.C. was
removed from New Story.
The plaintiffs commenced this action on November 17, 2015, (Doc. 1),
asserting federal claims against both SSD and New Story under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12131, et seq., (Counts
I & III, respectively), and under Section 504 of the Rehabilitation Act of 1973
(“RA”), 29 U.S.C. §794, (Counts II & IV, respectively). The plaintiffs also raise
state law claims for negligence and intentional infliction of emotional distress
(“IIED”) against New Story, (Counts V & VI). As relief against SSD and New
Story regarding their federal claims, plaintiffs request compensatory damages
and attorneys’ fees. Plaintiffs request compensatory damages, punitive
damages and attorneys’ fees against New Story with respect to their state law
On January 22, 2016, SSD filed a motion to dismiss the plaintiffs’
complaint with respect to both of their federal claims under Fed.R.Civ.P.
12(b)(6), and in the alternative a motion to strike allegations in the complaint
under Fed.R.Civ.P. 12(f) that are time barred. (Doc. 17, Doc. 28, Doc. 33).
On February 2, 2016, New Story filed a motion to dismiss the plaintiffs’
complaint with respect to all of their claims under Fed.R.Civ.P. 12(b)(6). (Doc.
29, Doc. 34).
On June 13, 2016, the court issued a memorandum, (Doc. 40), and
order, (Doc. 41), denying SSD’s motion to dismiss, (Doc. 13), with respect to
plaintiffs’ RA and ADA claims, (Counts I & II), which are based on allegations
occurring after April 8, 2013. SSD’s motion to dismiss was granted to the
extent that plaintiffs’ allegations pre-dating April 8, 2013 cannot be the basis
for their federal claims since they are time barred. SSD’s motion to strike
plaintiffs’ allegations pre-dating April 8, 2013 was denied. New Story’s motion
to dismiss, (Doc. 14), all of plaintiffs’ claims against it was denied.
On June 27, 2016, SSD filed its answer to plaintiffs’ complaint with
affirmative defenses. (Doc. 46). On July 15, 2016, New Story filed its answer
to plaintiffs’ complaint with affirmative defenses as well as crossclaims against
SSD.1 (Doc. 47). In its crossclaims, New Story alleges that if the averments
in plaintiffs’ complaint are established and plaintiffs prevail on their claims,
“[SSD] is solely liable, liable over or jointly and severally liable, with New Story
under the Doctrine[s] of Indemnification and Contribution.” New Story also
alleges that if plaintiffs recover damages, “then said damages are the result
of the acts or omissions of [SSD], and not the acts or omission of New Story.”
(Id. at 25-26).
This court’s jurisdiction over the plaintiffs’ federal claims is based on 20
U.S.C. §1415(i)(2) and 28 U.S.C. §1331. The court’s pendent jurisdiction over
the plaintiffs’ state claims is based on 28 U.S.C. §1337.
Although New Story asserts its crossclaim for indemnification and
contribution together, the court shall refer to them as crossclaims since they
are separate legal theories and discussed separately herein.
STANDARDS OF REVIEW
SSD’s motion to dismiss is brought pursuant to the provisions of
Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65)).
In Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 256 n.
13 (3d Cir. 2010), the Third Circuit noted that the pleading standard
annunciated in Iqbal applies to crossclaims.
Lastly, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
SSD moves to dismiss New Story’s crossclaims alleging that SSD is
solely liable to plaintiffs for any damages. In the alternative, New Story alleges
that if it is held liable to plaintiffs for any damages, then SSD is liable over to
it based on contribution and/or indemnification. New Story also alleges that
SSD is jointly and severally liable with it. Under the theories of contribution
and indemnification, SSD would be required to compensate New Story, not
the plaintiffs. SSD argues that the conclusory statements alleged in New
Story’s crossclaims do not suffice under the pleading requirements of Iqbal
and do not satisfy Fed.R.Civ.P. 13(g) which it argues requires supporting
facts. As such, SSD contends that the conclusory averments in New Story’s
crossclaims do not state plausible claims for indemnification and contribution.
Federal Rule of Civil Procedure 13(g) pertains to a crossclaim against
a co-party and provides that any claim by one party against a co-party that
“arises out of the transaction or occurrence that is the subject matter of the
original action” may be plead as a crossclaim and “[t]he crossclaim may
include a claim that the co-party is or may be liable to the cross-claimant for
all or part of a claim asserted in the action against the cross-claimant.” It is
clear that New Story’s claims against SSD arise out of the occurrences that
are the subject matter of plaintiffs’ complaint against both of them. Rule 13,
like Rule 14 which relates to third party complaints, is procedural and “does
not itself create a right to indemnity or contribution.” Kohn v. Sch. Dist. of City
of Harrisburg, 2012 WL 1598096, *3 (M.D.Pa. May 7, 2012) (Court held that
Rule 14 was procedural and did not create a right to indemnity or
contribution.”) (citation omitted). Rather, the right to indemnity or contribution
“must come from the applicable substantive law.” Id. (citation omitted). New
Story bases its crossclaims on Pennsylvania law.
Under Pennsylvania law, “[a] right to contribution arises only among joint
tortfeasors.” Id. (citation omitted). “[J]oint tortfeasors ‘either act together in
committing the wrong, or their acts, if independent of each other, must unite
in causing a single injury’ or they are ‘two or more persons [who] owe to any
other the same duty and by their common neglect such other is injured.’” Id.
(citation omitted). “[J]oint tortfeasors must owe the ‘same duty’ to the plaintiff,
at least in the sense that they each owe a duty to the plaintiff, even if the
cause of action is different.” Id. at *5 (citation omitted).
Pennsylvania courts consider the following factors in determining if
defendants are joint tortfeasors:
the identity of a cause of action against each of two or more
defendants; the existence of a common or like duty; whether the
same evidence will support an action against each; the single,
indivisible nature of the injury to the plaintiffs; identity of the facts
as to time, place or result; whether the injury is direct and
immediate, rather than consequential, responsibility of the
defendants for the same injuria as distinguished from damnum.
Voyles v. Corwin, 295 Pa.Super.Ct. 126, 130–31, 441 A.2d 381, 383 (1982).
In the instant case, plaintiffs have alleged that SSD and New Story both
had a common duty to them and plaintiffs have asserted common causes of
action against them. Plaintiffs allege that both SSD and New Story improperly
treated A.C. when he was enrolled in their schools, including excessively
using physical restraints on him, and that they denied him appropriate and
required care. Plaintiffs also allege that SSD contracts with New Story to
provide education to district students at New Story’s facilities and that A.C.
was transferred by SSD to New Story. Plaintiffs have basically alleged that
both defendants acted together in denying A.C. proper care and in improperly
restraining him which resulted in direct injury to A.C. If plaintiffs prevail, both
defendants would share in their liability to plaintiffs.
Although the allegations in plaintiffs complaint meet the above factors
and show that New Story and SSD had the same duty to them and that New
Story can be a joint tortfeasor with SSD, New Story’s crossclaim for
contribution is woefully deficient. When ruling on a Rule 12(b)(6) motion, “[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.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223,
231 n. 14 (3d Cir. 2013). New Story recognizes that its crossclaims do not
specifically allege any facts, including facts showing it is a joint tortfeasor with
SSD. However, New Story states that SSD’s motion is premature and that it
has alleged enough facts regarding its crossclaims to put SSD on notice. New
Story also states that it should be allowed to conduct discovery regarding its
crossclaims against SSD. (Doc. 51, at 8-9).
SSD’s motion to dismiss New Story’s crossclaim for contribution will be
granted and this crossclaim will be dismissed without prejudice. Based on the
above, the court does not find that it would be futile to allow New Story to
amend this crossclaim and to conduct discovery regarding this claim.2
The court now considers whether New Story can assert a crossclaim for
indemnity against SSD. In Amco Ins. Co. v. Varish Const., Inc., 2010 WL
3239395, *2-*3 (M.D.Pa. July 15, 2010), adopted by 2010 WL 3239231
(M.D.Pa. Aug. 16, 2010), the court stated: **check cite***
“Indemnification is ‘a fault shifting mechanism.’” Sovereign Bank
v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 174 (3d Cir. 2008)
(quoting Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 506 A.2d
868, 871 (Pa. 1986)). Indemnity “‘shifts the entire loss from one
In fact, the court recently extended the discovery deadline a second
time in this case to May 8, 2017. (Doc. 65).
tortfeasor who has been compelled to pay it to the shoulders of
another who should bear it instead.’” Walton, supra, 610 A.2d at
460 (quoting W. Prosser, Law of Torts at 310 (4th ed.1979)).
Indemnity may be based either on a contractual provision or on
the common law right of indemnification.
Thus, “[a] right to indemnification can arise from a contract to indemnify
or by operation of common law.” Banks v. City of Phila., 991 F.Supp.2d 523,
528 n. 9 (E.D.Pa. 2014) (citing Agere Sys., Inc. v. Advanced Envtl. Tech.
Corp., 552 F.Supp.2d 515, 519 (E.D.Pa. 2008)). “Absent a contract to
indemnify, a defendant will be entitled to indemnification if, due to no fault of
his own, he has been legally compelled to pay for damages primarily caused
by another.” Id.; see also Allegheny Gen. Hosp. v. Phillip Morris, Inc., 228
F.3d 429, 448 (3d Cir. 2000) (“Under Pennsylvania law, indemnity is available
only (1) ‘where there is an express contract to indemnify,’ or (2) where the
party seeking indemnity is vicariously or secondarily liable for the indemnitor’s
acts.”) (citation omitted); Kohn, 2012 WL 1598096, *3 (Under Pennsylvania
law, “the right to indemnity is contractual or arises when a person not actively
at fault has been compelled by a legal obligation to pay damages that have
been caused by the tortious conduct of another.” (citations omitted).
In its crossclaim, New Story does not allege the existence of any
contractual right to indemnity owed to it by SSD. However, in its opposition
brief, (Doc. 51, at 7-8), New Story contends that a contractual right to
indemnity exists obliging SSD to indemnify it if it is found liable to plaintiffs.
New Story states in its brief that it acted in accordance with the IEP for A.C.
developed by SSD which included the use of restraints and that every time it
used restraints on A.C. SSD was contacted and given an incident report. New
Story also states that SSD did not instruct it to refrain from using restraints.
Thus, New Story contends that it acted at the direction of SSD and in
accordance with SSD’s IEP. New Story concludes that “[u]nder its contract
with SSD, [it] is indemnified by SSD for the claims against [it] when it
implemented the IEP developed by SSD.” (Id.).
As mentioned, New Story does not allege in its crossclaim that SSD had
a contract to indemnify it. Nor does New Story allege any of the stated facts
detailed above that are in its brief. Since these facts are not alleged in New
Story’s crossclaim it cannot amend this claim in its brief in opposition. See
Damiano v. Scranton Sch. Dist., 135 F.Supp.3d 255, 279 (M.D.Pa. 2015)
(citing Sung Tran v. Delavau, LLC, 2008 WL 2051992, *11 (E.D.Pa. May 13,
2008) (“It is axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.”); Ex rel. Zimmerman v. PepsiCo, Inc,
836 F.2d 173, 181 (3rd Cir.1988)). Additionally, plaintiffs’ complaint does not
raise the allegations that are stated in New Story’s brief. In fact, plaintiffs’
complaint alleges that New Story was negligent in its own right and engaged
in its own intentional tortious conduct. Plaintiffs specifically allege that when
A.C.’s was transferred, New Story knew “the limitations placed upon the use
of restraints by A.C.’s treating physician” and that despite this knowledge,
New Story improperly treated A.C. by using restraints on him which impeded
his education. (Doc. 1 at ¶ 69).
The court will grant SSD’s motion and dismiss New Story’s crossclaim
for indemnity with prejudice. The court will not permit an amendment of this
claim since it finds futility due to New Story’s failure to even allege in its
crossclaim that SSD had a contract to indemnify it and due to its failure to
state the language of the contract providing for indemnification. In fact, when
it seeks discovery regarding its crossclaims in its brief, New Story does not
indicate that it will provide the indemnification provision to its contract with
SSD. See Banks, 991 F.Supp.2d at 529 (claim for indemnification was based
on an indemnity clause in lease agreement which was detailed in the
allegations of the pleading). Rather, it states that SSD’s motion should be
denied “until New Story has been allowed discovery given that the facts at
issue are within SSD’s control.” (Doc. 51 at 9). The stated deficient facts
regarding New Story’s crossclaim for indemnity are also within its control.
Moreover, New Story has not stated a viable crossclaim against SSD
for common law indemnification. In Banks, 991 F.Supp.2d at 530, the court
stated that the common law right of indemnification applies when a
defendant’s liability “arises not out of its own conduct, but out of a relationship
that legally compels the defendant to pay for the act or omission of a third
party.” (quoting Morris v. Lenihan, 192 F.R.D. 484, 489 (E.D.Pa. 2000)).
“Because the party seeking common law indemnity must demonstrate that
there was no active fault on his own part, ‘indemnity is unavailable to an
intentional tortfeasor because it would permit him to escape liability for his
own deliberate acts.’” Id. (citation omitted).
SSD correctly points out that plaintiffs allege that New Story used
inappropriate physical restrains on A.C. at least 23 times between January
2013 and February 2014 causing him to suffer harm. Further, SSD states that
New Story has not shown how and under what legal theory it is liable to New
Story with respect to New Story’s own alleged intentional acts towards A.C.
(Doc. 50 at 9).
Since New Story cannot show that there was no active fault on its part,
common law indemnity is not available to it. See Banks, 991 F.Supp.2d at 531
(court cited several cases holding that Pennsylvania does not permit common
law indemnification for intentional torts.) As such, it would be futile to allow
New Story to try and amend a common law indemnity crossclaim against
Thus, SSD’s motion to dismiss New Story’s crossclaim for
indemnification against it will be granted and this crossclaim will be dismissed
For the foregoing reasons, SSD’s motion to dismiss New Story’s
crossclaims against it, (Doc. 49), is GRANTED. New Story’s crossclaim for
indemnification is DISMISSED WITH PREJUDICE. New Story’s crossclaim
for contribution is DISMISSED WITHOUT PREJUDICE. A separate order
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: March 29, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-2198-02.wpd
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