The opinion of the court was delivered by: David G. Larimer United States District Judge
This action is brought by plaintiffs on behalf of their infant daughter, H.W., and asserts claims pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq. ("IDEA"), several other federal statutes, and the New York Human Rights Law, N.Y. Exec. Law §§290 et seq. Plaintiffs allege that the defendants, the Spencerport Central School District, the District's Board of Education (collectively the "District"), and the New York State Department of Education ("NYSED"), failed to provide H.W. with a free appropriate public education. Both NYSED (Dkt. #11) and the District defendants (Dkt. #12) have moved to dismiss the action pursuant to Fed. R. Civ. Proc. 12(b)(6).
For the reasons that follow, the defendants' motions to dismiss are granted, and the complaint is dismissed.
Plaintiffs are the parents of H.W., a student who attended school in the District from the fall of 2004 through the spring of 2009. H.W. was classified by the District's Committee on Special Education as a student with a disability for purposes of the IDEA, due to her diagnosis of PraderWilli Syndrome, a rare disorder associated with a variety of physical and cognitive symptoms, including learning and attention difficulties. In September 2009, plaintiffs unilaterally removed H.W. from the District and enrolled her at Hope Hall School, a private institution.
Plaintiffs thereafter requested tuition reimbursement from the District. Following a due process hearing, the impartial hearing officer ("IHO") found that the District had offered a free appropriate public education for H.W., and denied plaintiffs' tuition reimbursement request.
The IHO's decision was issued and served by mail on the plaintiffs on November 20, 2010. Thus, any appeal of the IHO's decision by a State Review Officer ("SRO") was required to be served on the District or before December 29, 2010 (the 35-day statute of limitations under 8 N.Y.C.R.R. §279.2(b), plus four days to account for service by mail).
At some point thereafter, plaintiffs' counsel apparently concluded that plaintiffs would be unable to timely serve the appeal, as she contacted the District's counsel to request whether it would consent to plaintiffs' untimely service of the petition, if it was served on or before January 11, 2011. (Because the applicable regulations do not provide a mechanism for appellants to request an extension of time from the SRO to file their petition, the District's "consent" for plaintiffs to file an untimely petition presumably meant that the District was agreeing not to thereafter oppose the petition on untimeliness grounds). (Dkt. #15 at ¶¶ 4, 5). The District assented.
On or about January 10, 2011, plaintiffs' counsel asked the District to consent to untimely service of the petition until January 12, 2011. This time, the District declined. Plaintiffs ultimately did not serve the District with the petition until January 25, 2011, 66 days after the IHO's decision was issued, and 27 days after the December 29, 2010 appeal deadline had expired.
On March 23, 2011, a SRO dismissed plaintiffs' appeal sua sponte as untimely, and in excess of the applicable page limitations. In so doing, the SRO concluded that plaintiffs' proffered reasons for the late filing of the petition --a holiday vacation and relocation of plaintiffs' counsel's solo practice during the period between December 17, 2010 and January 3, 2011 -- did not constitute "good cause" for the late filing, and declined to excuse its untimeliness. (Dkt. #1 at Exh. 2, Dkt. #15-1).
Plaintiffs now bring this action on H.W.'s behalf, alleging that they have sustained economic injuries in their efforts to secure an appropriate education for H.W. The defendants have separately moved (Dkt. #11, #12) to dismiss the action pursuant to Fed. R. Civ. Proc. 12(b)(6), primarily on the grounds that plaintiffs failed to exhaust their administrative remedies. For the reasons that follow, those motions are granted, and the complaint is dismissed.
I. Standard for Fed. R. Civ. Proc. 12(b)(6) Motion
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the Court's review is limited to the complaint, and those documents attached to the complaint or incorporated therein by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660,662 (2d Cir. 1996). The Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action ...