United States District Court, D. Colorado
RECOMENDATION REGARDING DEFENDANT'S MOTION TO
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's motion to
dismiss (ECF # 8), Plaintiff's pro
se response (ECF# 10) and Defendant's
reply (ECF #11). The motion has been referred to this
Magistrate Judge for recommendation (ECF #9). The Court has
reviewed the pending motion, response, reply and all
attachments. The Court has also considered the entire case
file, the applicable law, and is sufficiently advised in the
premises. On October 3, 2018, the Court held a hearing on the
matter to determine whether Plaintiff wished to amend his
complaint to instead proceed against the Mesa County Valley
School District 51 (Dist. 51) (ECF #13). Plaintiff was
afforded the opportunity to consult with the pro se law
clinic housed at the Arraj Courthouse in Denver. Plaintiff
states that he maintains “that the Colorado Department
of Education is the proper defendant to name in this
case” (ECF #14). This Magistrate Judge respectfully
recommends that the motion be GRANTED.
and Procedural Background
the divorced father of a 2nd grade student having
trouble with pronunciation of “R”, brings suit
(complaint, ECF #1, p. 3). The father did not suspect that
that child had a disability and the mother did. Id.
The mother consented to an evaluation to determine if the
child is disabled and the father did not. Id. The
parents share equally in educational decision making of the
child. Id. Plaintiff, the father, requested
mediation pursuant to 34 C.F.R. §300.506 regarding
whether the child should be evaluated. Id. On March
26, 2018, Dist. 51 staff informed Plaintiff that consent of
the mother was sufficient for the evaluation to be conducted
without mediation. Id. This was by way of an email
from the Principal of Nisley Elementary to Plaintiff (ECF #1,
pp. 8-9). Plaintiff filed a due process complaint with the
Colorado Department of Education Exceptional Services Unit
(CDE) opposing the Dist. 51 determination denying mediation.
Id. The School District moved to dismiss and the
Plaintiff replied. Id. The matter was referred to
the Office of Administrative Courts. Id.
agency decision, attached to Plaintiff's complaint as
exhibit B (ECF #1, pp. 10-13) was issued by Administrative
Law Judge (ALJ) Norcross. The agency decision is captioned
Robinson v. Mesa County Valley School District No. 51 and
addresses that the “District” moved to dismiss
Plaintiff's complaint on the basis that the District
needed only one parent's consent in a circumstance where
there was joint custody. Id. passim.
Ultimately, the ALJ upheld the decision of the District on
the basis that the District correctly determined that only
one parent with the right to consent need consent in order to
deprive the non-consenting parent of the opportunity for
mediation. Id. The ALJ advised Plaintiff of his
right to appeal. Id. at p. 4 (ECF #1, p. 13).
Plaintiff now brings suit against the Colorado Department of
Education, Exceptional Student Services Unit (ECF #1).
Argument for Dismissal
the CDE, moves to dismiss pursuant to Rules 12(b)(1)
(jurisdiction) and 12(b)(6) (failure to state a claim) (ECF
#8, p. 3). According to the CDE, it (the CDE) is not the
proper Defendant in this action, rather, that should instead
be Mesa County/District 51. Id. at pp. 4-5. The CDE
argues that: (1) all actions below were undertaken by the
District (ECF #8, p. 5); and (2) the CDE's role as the
State Education Authority (SEA) is to provide an impartial
forum-which does not place the CDE in an adversary role to
the Plaintiff, Id.
Response Plaintiff responds, arguing that the CDE is the
correct Defendant because “the complaint offers an
opportunity to correct precedent that is governing decisions
in case after case” (ECF #10, p. 1). Essentially,
Plaintiff's theory as to why the CDE is the correct
Defendant is that: (1) the local school district relied on
legal precedent from another CDE decision and not on specific
language of the IDEA [Individuals with Disabilities Education
Act]; (2) the CDE decision relied on one or more other
decisions from other jurisdictions; and (3) the manner of
correcting what Plaintiff perceives to be an incorrect
reading of the law is to pursue suit against the CDE.
as here, a defendant seeks dismissal under Rule 12(b)(1) and
Rule 12(b)(6) in the alternative, “the court must
decide first the 12(b)(1) motion for the 12(b)(6) challenge
would be moot if the court lacked subject matter
jurisdiction.” Mounkes v. Conklin, 922 F.Supp.
1501, 1506 (D. Kan. 1996) (citing Moir v. Greater
Cleveland Reg'l Transit Auth., 895 F.2d 266, 269
(6th Cir. 1990)).
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case, but only a
determination that the court lacks authority to adjudicate
the matter. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal
courts are courts of limited jurisdiction and may only
exercise jurisdiction when specifically authorized to do so).
A court lacking jurisdiction “must dismiss the cause at
any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” Id. (citing Full
Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th
Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be
determined from the allegations of fact in the complaint,
without regard to mere [conclusory] allegations of
jurisdiction.” Groundhog v. Keeler, 442 F.2d
674, 677 (10th Cir. 1971). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.
Pueblo of Jemez, 790 F.3d at 1151. Generally, a
court does not have jurisdiction over a party not named as a
respondent in an administrative action. See Rubidoux v.
Johnston, 954 F.Supp. 1477, 1480 (D. Colo. 1997)
(dismissing a party not named in an EEOC matter as a
respondent for lack of subject matter jurisdiction).
Court may dismiss a complaint for failure to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
Dismissal under Rule 12(b)(6) may also be based on the lack
of a cognizable legal theory. See Golan v. Ashcroft,
310 F.Supp.2d 1215, 1217 (D. Colo. 2004). To withstand a Rule
12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact, which, taken as true, “state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012). Although allegations of fact are
accepted as true, legal conclusions are not. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Mere “labels
and conclusions” and “a formulaic recitation of
the elements of a cause of action” will not suffice.
Twombly, 550 U.S. at 555. “Factual allegations
must be enough to raise a right to relief above the
speculative level.” Id. Accordingly, the Court
disregards conclusory statements and looks only to whether
the remaining factual allegations plausibly suggest the
defendant is liable. Khalik, 671 F.3d at 1190-91.
“Thus, the mere metaphysical possibility that
some plaintiff could prove some set of