United States District Court, C.D. California
Los Angeles Unified School District
PRESENT: HONORABLE MICHAEL W. FITZGERALD, U.S. DISTRICT JUDGE
(IN CHAMBERS): ORDER RE DEFENDANT'S MOTION TO DISMISS FOR
LACK OF JURISDICTION 
the Court is Defendant's Motion to Dismiss for Lack of
Jurisdiction, filed on March 24, 2017. (“the Motion,
” Docket No. 12). Plaintiff filed an Opposition and
Defendant filed a Reply. (Docket Nos. 13-14). The Court held
a hearing on April 24, 2017.
read and considered the briefs, the Court
GRANTS the Motion and the action is
DISMISSED without prejudice to
Plaintiff refiling the case once all claims have been
is a sixth-grade student at Shirley Avenue Elementary School.
(Complaint, Docket No. 1, ¶ 1). Plaintiff has Down
syndrome and is considered a disabled student pursuant to the
Rehabilitation Act and the Americans with Disabilities Act
(“ADA”). (Id. ¶ 2). Defendant held
an Individualized Education Program (“IEP”)
meeting for Plaintiff on May 5, 2014, to address certain
behavioral issues. (Id. ¶ 8). Plaintiff's
parents felt that Defendant was not providing appropriate
support for Plaintiff, so they filed for due process against
Defendant, an administrative proceeding in the Office of
Administrative Hearings (“OAH”). (Id.
¶ 12). The parties reached a settlement agreement that
requires Defendant to provide certain services to Plaintiff
to assist with his behavioral issues at school.
Complaint alleges Defendant has failed to comply with that
settlement agreement, and raises a claim for discrimination
under the ADA and a claim for a violation of the
Rehabilitation Act. The Complaint cites an incident in which
Plaintiff broke his leg in a fall at school as evidence of
discrimination. (Id. ¶ 19).
Motion is nominally brought under Rule 12(b)(6) for failure
to state a claim. The Motion is directed, however, at the
lack of subject matter jurisdiction, which would indicate a
Rule 12(b)(1) action. If a defendant seeks to challenge not
the Plaintiff's substantive allegations but the
Court's subject matter jurisdiction, the motion to
dismiss must be brought under Rule 12(b)(1). A jurisdictional
attack under Rule 12(b)(1) may be “facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the
complaint's allegations must be accepted as true.
Id. But “in a factual attack, the challenger
disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.”
Id. In that case, facts tending to prove or disprove
jurisdiction “are not afforded presumptive
truthfulness.” Young v. United States, 769
F.3d 1047, 1052 (9th Cir. 2014).
jurisdictional facts are “‘so intertwined'
with the substantive dispute that resolution of the former
depends, at least in part, on resolution of the latter,
” it may be inappropriate to resolve factual issues at
the motion to dismiss stage. Id. (quoting
Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir. 1983)). In that case, “a court should employ the
standard applicable to a motion for summary judgment because
resolution of those jurisdictional facts is akin to a
decision on the merits.” Id. The moving party
should prevail only if those facts relevant to jurisdiction
are not in dispute. Id.
argues that Plaintiff's Complaint actually seeks to
litigate the adequacy of the free appropriate public
education (“FAPE”) provided by Defendant to
Plaintiff. If that's the case, then Plaintiff must first
exhaust his claims through the administrative procedures
established by the Individuals with Disabilities Education
Act (“IDEA”). See 20 U.S.C. §
1412(l) (“[B]efore the filing of a civil
action under such laws seeking relief that is also available
under this subchapter, the procedures under subsections (f)
and (g) shall be exhausted to the same extent as would be
required had the action been brought under this
subchapter.”). The IEP is the “centerpiece of the
statute's education delivery system, ” and
“serves as the ‘vehicle' or ‘means'
of providing a FAPE.” Fry v. Napoleon Cmty.
Sch., 137 S.Ct. 743, 753 (2017) (quoting Honig v.
Doe, 484 U.S. 305, 311 (1988)). A suit that
“seek[s] relief for the denial of a FAPE” must
meet this exhaustion requirement. Id. “[I]n
determining whether a suit indeed ‘seeks' relief
for such a denial, a court should look to the substance, or
gravamen, of the plaintiff's complaint.”
Id. Thus, the inquiry does not hinge on whether a
complaint uses the words “FAPE” or
“IEP” specifically. Id.
Supreme Court has recently provided some helpful
“clues” as to whether a complaint concerns denial
of a FAPE, or “instead addresses disability-based
discrimination.” Id. at 756. These clues come
in the form of two questions a court should ask when
analyzing a child's complaint: (1) “could the
plaintiff have brought essentially the same claim if the
alleged conduct had occurred at a public facility that was
not a school, ” and (2) “could an
adult at the school-say, an employee or visitor-
have pressed essentially the same grievance?”
Id. (emphasis in original). If the claims could only
be brought at a school, and only by a child, then the
complaint “probably does concern a FAPE, even if it
does not explicitly say so.” Id.
those two questions here, the Court concludes Plaintiff
really seeks relief under IDEA, and must first exhaust his
claims. First, Plaintiff's claims center on his IEP and
his behavioral issues at the school, claims which could not
be brought against any other “public facility.”
The Complaint alleges the “level of behavior
support” from Defendant has been inadequate, and that
Defendant failed to address Plaintiff's parents'
concerns regarding Plaintiff's behavioral issues in his
IEP meeting. (Complaint ¶¶ 7-8). The Complaint also
specifically alleges Defendant's lack of support did not
allow Plaintiff to ...