United States District Court, D. New Mexico
DOMINIC BOUTELLE, as parent of L.B., a minor child, Plaintiff/Counter-Defendant,
BOARD OF EDUCATION OF LAS CRUCES PUBLIC SCHOOLS, Defendant/Counter-Claimant.
MEMORANDUM OPINION AND ORDER
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
case is before the Court upon Plaintiff/Counter-Defendant
Dominic Boutelle's (“Plaintiff's”)
“Motion to Dismiss Counterclaim”
(“Motion”) filed on April 9, 2018. ECF No. 8.
Defendant/Counter-Claimant Board of Education of Las Cruces
Public Schools (“Defendant”) responded on April
21, 2018. ECF No. 13. Plaintiff replied on May 3, 2018. ECF
No. 16. On June 22, 2018, the Court held a hearing on the
Motion to obtain additional information and argument from the
parties. ECF No. l9. Having considered the parties' oral
and written submissions, the record, and governing case law,
the Court concludes that the Motion should be granted for the
reasons that follow.
is the parent of L.B., a minor child and student living
within the boundaries of the Las Cruces Public Schools
District (“the District”). Pl.'s Compl.
¶ 5, ECF No. 2. Plaintiff maintains that L.B. is a child
with a disability who should have qualified for special
education eligibility under the Individuals with Disabilities
in Education Act (“the IDEA”). Id.,
see 20 U.S.C. § 1400 et seq. (2016).
attended Camino Real Middle School, a school within the
District, throughout the 2016-17 school year. See
Pl.'s Compl. ¶¶ 5, 16. In that time, L.B.
demonstrated noncomforming behaviors that culminated in his
being subject to disciplinary measures by the District on May
1, 2017. Id. ¶¶ 17, 22-23. Plaintiff
alleges that the District's failure to develop an
individualized educational program for L.B. prior to imposing
punishment denied L.B. the free appropriate public education
guaranteed to him by the IDEA. See Id. ¶ 27.
See also 20 U.S.C. § 1400(d)(1)(A)
(guaranteeing that “all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further
education, employment, and independent living”). On May
4, 2017, the District crafted Plaintiff's first
individualized educational program. Pl.'s Compl. ¶
31, 2017, Plaintiff challenged the District's actions by
requesting a due process hearing with the New Mexico Public
Education Department (“NMPED”). See Id.
¶ 10. NMPED thereafter appointed a due process hearing
officer (“DPHO”) who conducted a five-day hearing
in September 2017. Id. ¶ 11. The DPHO issued
his decision on November 14, 2017, finding against Plaintiff
and concluding generally that L.B. had not been denied a free
appropriate public education by the District. See
Id. ¶ 12.
parties stipulate that Plaintiff timely filed his appeal of
the DPHO's decision to this Court on December 14, 2017.
See Id. ¶¶ 13-14, Def.'s Answer and
Countercl. ¶¶23-24, ECF No. 4. See also
N.M. Admin. Code § 18.104.22.168(I)(24)(a) (2018)
(“Any party aggrieved by the decision of a hearing
officer in an IDEA matter has the right to bring a civil
action in a state or federal district court . . . within 30
days of the receipt of the hearing officer's decision by
the appealing agency.”). On March 19, 2018, the
District filed its Original Answer and Counterclaim, which
gave rise to the current controversy. ECF No. 4.
filed the instant Motion under Federal Rule of Civil
Procedure 12(b) urging this Court to dismiss Defendant's
counterclaim on two grounds. First, Plaintiff challenges the
Court's jurisdiction to hear the counterclaim, as he
contends that it constitutes an untimely appeal of the
DPHO's decision under both federal and state law.
See Pl.'s Mot. 2-3. See also Fed. R.
Civ. P. 12(b)(1) (allowing a party to move for dismissal
based on lack of subject-matter jurisdiction); N.M. Admin.
Code § 22.214.171.124(I)(24)(a) (setting thirty-day period
for judicial appeals of DPHO decisions). Additionally,
Plaintiff argues that Defendant is not an “aggrieved
party” for purposes of the IDEA, thereby depriving this
Court of jurisdiction to hear its counterclaim and depriving
the counterclaim of any basis upon which this Court could
grant relief. See Pl.'s Mot. 3-4. See
also Fed. R. Civ. P. 12(b)(1); Fed.R.Civ.P. 12(b)(6)
(allowing a party to move for failure to state a claim upon
which relief can be granted); N.M. Admin. Code §
126.96.36.199(I)(24)(a) (allowing only an “aggrieved
party” to bring a civil action challenging a DPHO's
Motions to Dismiss Under Rule 12(b)(1)
12(b)(1) motion is the proper avenue to challenge the
court's subject matter jurisdiction, and Rule 12(h)(3)
requires that ‘(w)henever it appears by suggestion of
the parties or otherwise that the court lacks jurisdiction of
the subject matter, the court shall dismiss the
action.'” Barnson v. United States, 531
F.Supp. 614, 617 (D. Utah 1982). Such motions may take one of
two forms. First, “a facial attack on the
complaint's allegations as to subject matter jurisdiction
questions the sufficiency of the complaint.” Holt
v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
In reviewing motions of this type, “a district court
must accept the allegations in the complaint as true.”
Id. Second, “a party may go beyond allegations
contained in the complaint and challenge facts upon which
subject matter jurisdiction depends.” Id. at
1003. In evaluating motions brought under the second form,
the Tenth Circuit explained:
When reviewing a factual attack on subject matter
jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations. A
court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).
Id. (internal citations omitted). Accordingly, this
Court reviews the face of the complaint and any relevant
external materials to determine whether Plaintiff has
presented claims within the Court's jurisdiction, a
necessary prerequisite for adjudication on the merits.
Fed.R.Civ.P. 12(b)(1); see also Fleming v.
Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015) (holding
that lack of subject matter jurisdiction precludes reaching
the merits of a dispute).
Motions to Dismiss Under Rule 12(b)(6)
Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A plaintiff's
complaint (or a defendant's counterclaim) must set forth
factual allegations that “raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). It is not enough for
a claimant to just set forth labels, conclusions, and
formulaic recitation of the elements of a cause of action.
Id. When reviewing a complaint for Rule 12(b)(6)
purposes, the Court must accept all well-pleaded allegations
as true. Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009). The Court must view the allegations in the
light most favorable to the claimant. Id. The Court
“will disregard conclusory statements and look only to
whether the remaining, factual allegations plausibly suggest
the defendant is liable.” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). “This
plausibility standard does not require evidence of
probability, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
first blush, Plaintiff's grounds for dismissal appear
routine. Closer examination, however, reveals that neither
proposition falls neatly within the four corners of settled
law within this circuit, and neither can be counted among the
frequently litigated topics in the federal courts. Were that
not enough, neither ground may be understood without at least
a basic understanding of how and when parties may appeal
administrative decisions issued pursuant to the IDEA. Thus,
to craft its decision, the Court will first explore relevant
sections of the IDEA, followed by a sequential analysis of
Plaintiff's two claims.
IDEA creates an “enforceable substantive right to
public education.” Honig v. Doe, 484 U.S. 305,
310 (1988) (citation omitted). Further, the IDEA seeks to
ensure that “all children with disabilities have
available to them a free appropriate public education
[(“FAPE”)] that emphasizes special education and
related services designed to meet their unique needs and
prepare them for employment and independent living.” 20
U.S.C. § 1400(d)(1)(A). Providing a FAPE is achieved
through the ...