The opinion of the court was delivered by: Siragusa, J.
This is a lawsuit by the parent of a blind child who alleges her son is not receiving a fair and appropriate public education in the Honeoye school district. The matter is before the Court on the application*fn2 (Docket No. 23) of defendants Monroe #1 Board of Cooperative Educational Services ("BOCES") and Betsy Walker ("Walker") to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and for judgment on the pleadings*fn3 pursuant to Rule 12(c). (Def.s' Notice of Motion 1.) Though docketed by counsel for Plaintiff as simply a response*fn4 to the motion to dismiss, Plaintiff's papers also contain a cross-motion for an award of attorney's fees (Docket No. 37) in addition to opposing Defendants' motion to dismiss. For the reasons stated below, Defendants' motion is granted in part, and denied in part, and Plaintiff's cross-motion is denied.
First, the Court needs to address the presence of a pro se litigant on the docket. From a review of Plaintiff's counsel's papers (Docket No. 37), it appears that an action was commenced by Honeoye Central School District against "S.V. as Parent and Next Friend of J.V., a Child With a Disability) on August 5, 2009, in New York State Supreme Court (Index No. 103328). In that regard, SV's counsel filed a Notice of Removal on August 7, 2009, and that case was assigned docket number 09-CV-6407-CJS in the Court. On June 3, 2010, the Honeoye Central School District moved to remand the case to New York State Supreme Court, and S.V. has opposed the motion and moved for an award of attorney's fees. Notwithstanding the removed case, the docket for this lawsuit reveals no basis for the presence of a pro se party, S.V., and the Clerk, at the Court's request, has modified the docket to show that S.V. is also represented by the same counsel representing Ms. Vieira.
In addressing a motion to dismiss, the Court assumes the allegations in the complaint are true. The amended complaint filed on August 5, 2009, alleges the following relevant facts pertaining to BOCES and Walker.*fn5
Plaintiff's amended complaint contains the following causes of action: 1. Violations of 20 U.S.C. § 1400, The Individuals with Disabilities Education Act ("IDEA");
2. Violations of 29 U.S.C. § 701, Section 504 of the Rehabilitation Act;
3. Violations of 42 U.S.C. § 12101, the Americans with Disabilities Act;
4. Intentional infliction of emotional distress;
5. Negligent infliction of emotional distress;
6. Negligent hiring, training, supervision and retention; and
7. Violation of 42 U.S.C. § 1983 through deprivation of civil rights (4th, 5th & 14th Amendments) alleging Defendants participated in discriminatory behavior, created a hostile environment, harassment and disparate treatment of Jordan Vieira.
Motion to Dismiss Standard
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),*fn6 clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only 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 upon which it rests. W hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.)
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.
Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009):
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949--50.
Federal Rule of Civil Procedure 12
Pertinent portions of Federal Rule of Civil Procedure 12 are relevant to the pending motions and reproduced here:
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can ...