Franchi v. New Hampton School

656 F.Supp.2d 252

2009 DNH 139

Debra FRANCHI v. NEW HAMPTON SCHOOL.

Civil No. 08-cv-395-JL.

United States District Court, D. New Hampshire.

September 18, 2009.

COPYRIGHT MATERIAL OMITTED

Donna-Marie Cote, Peter E. Hutchins, Wiggin & Nourie PA, Manchester, NH, for Debra Franchi.

Andrew W. Serell, Rath Young & Pignatelli PA, Concord, NH, for New Hampton School.

ORDER

JOSEPH N. LAPLANTE, District Judge.

This case presents several questions about the duties of a private secondary school toward its students. Defendant New Hampton School ("NHS") moves to dismiss certain claims against it by plaintiff Debra Franchi on the ground that they fail to state a cause of action. See Fed. R.Civ.P. 12(b)(6). Franchi alleges that NHS expelled her daughter because she suffered from an eating disorder. Following the submission of the parties' memoranda, and a telephone conference with counsel, the court ordered Franchi to file a supplemental memorandum showing that her complaint stated a cause of action for certain additional claims (which NHS had not moved to dismiss) in light of this court's recent decision in Brodeur v. Claremont School District, 626 F.Supp.2d 195 (D.N.H.2009).

This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). After oral argument, the NHS's motion to dismiss is granted in part and denied in part, and certain of Franchi's other claims are also dismissed for failure to state a cause of action. While Franchi has adequately alleged that CF suffered from a disability so as to bring her within the protection of various federal statutes, she has not alleged that CF suffered discrimination on the basis of her sex, nor has she stated claims for breach of fiduciary duty, intentional infliction of emotional distress, or violation of the New Hampshire Consumer Protection Act.

I. Applicable legal standard

To state a claim for relief, a complaint must set forth "[f]actual allegations [that are] enough to raise a right to relief above the speculative level, on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and footnote omitted). This showing "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. By the same token, the showing does not require "detailed factual allegations," id., simply "enough factual matter (taken as true) to suggest" the plaintiff's right to relief, id. at 556, 127 S.Ct. 1955.

Furthermore, a court may act on its own initiative in questioning whether a complaint should be dismissed for failing to state a claim, provided that the plaintiff gets notice of the potential dismissal and an opportunity to respond to it. See, e.g., Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 7 (1st Cir.2007). Franchi received those protections here, where the court ordered her to file a memorandum explaining how certain counts of her complaint stated a cause of action in light of Brodeur, and she availed herself of that opportunity (as well as a presentation at oral argument).

II. Background

The following allegations of Franchi's first amended complaint are accepted as true for purposes of the motion to dismiss. See, e.g., Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir.2008). Franchi's daughter, CF, began her freshman year at NHS, a private boarding school, in the fall of 2007, when she was 14 years old. CF suffers from an eating disorder, which she manages with the support of her family and medical supervision. Franchi alleges that the NHS director of admissions, as well as an informational handout about counseling services available at the school, "assured [Franchi] that CF's eating disorder would not be a problem so long as CF was responsible regarding her health."

During her Thanksgiving break from classes at NHS, CF began a 10-day course of outpatient treatment for her eating disorder from a clinic unaffiliated with the school. Based on that clinic's recommendation, CF then attended a 10-day inpatient program at another clinic, followed by another 10-day outpatient program at the first clinic which concluded "around the Christmas and New Year holidays." Franchi had discussed CF's treatment with the NHS director of counseling, who said that CF could take a medical leave of absence during the "couple weeks of school between the Thanksgiving break and the Christmas break."

CF's case manager at her outpatient clinic "recommended that she have an outpatient team in place to support her through her transition back to NHS." In response, the school told Franchi, "We will do everything we can to support [CF] and the recommendations coming from" the clinic. But Franchi was unable to "get the support in place" prior to CF's return to school in early January 2008; her appointments with her nutritionist and therapist would not take place until late that month.

About two weeks after CF's return to NHS, the school informed Franchi that CF's weight had dropped by 3¼ pounds. Two days later, following the scheduled appointments with the nutritionist and therapist, NHS notified Franchi that CF's weight had fallen by another 1¼ pounds, to 114½ pounds.¹ That same day, two school officials called Franchi and "told her that NHS was discharging CF and instructed [Franchi] to immediately pick up her daughter," refusing to discuss the matter further. NHS also "refused to consider an alternative program whereby CF could become a day student," discharging CF from both "the academic program and the boarding program." And NHS also refused to refund "most of" the $49,000 in tuition and fees that Franchi paid for CF to attend NHS.

Franchi claims that NHS's decision was "at odds with [its] Student Life Handbook," which states that "the only situation that warrants immediate dismissal of a student is when `a situation arises that potentially threatens personal safety or the safety of the community.'" Franchi points out that various professionals who treated CF soon after her expulsion concluded that she in fact posed no danger to herself or others.

So Franchi commenced this action in this court. Her amended complaint asserts eleven numbered counts against NHS:

• violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182 (count 1);

• violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (count 2);

• violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (count 3);

• violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3604 (count 4);

• breach of contract (count 7);

• breach of fiduciary duty (count 8);

• negligence in failing "to abide by the rules and policies set out in [NHS] literature and handouts" (count 9);

• negligence in failing "to implement and adhere to all federal and state regulations established for the operation of an educational facility receiving federal funding" (count 10);

• negligent infliction of emotional distress (count 11);

• intentional infliction of emotional distress (count 12);

• "respondeat superior/vicarious liability/agency" (count 13); and

• violation of the New Hampshire Consumer Protection Act, N.H.Rev.Stat. Ann. § 358-A (count 14).²

Franchi seeks, inter alia, damages on her own behalf for "mental and emotional harm, and further economic losses associated with [NHS's] refusal to refund payment of tuition," and on CF's behalf for "severe mental and emotional harm ... as well as the damage with being forced to leave her friends and school and complete her high school education at a different institution."

III. Analysis

NHS has moved to dismiss all of Franchi's federal law claims—those alleging violations of the ADA, the Rehabilitation Act, Title IX, and the FHA—as well as her state-law claims for breach of fiduciary duty and violation of the New Hampshire Consumer Protection Act, arguing that they fail to state a cause of action. In addition, this court has ordered Franchi to show cause why certain of her state-law claims—those alleging breach of contract, negligent infliction of emotional distress by Franchi in her individual capacity, and intentional infliction of emotional distress— ought not to be dismissed for the same reason, and why her other negligence claims should not be stricken as duplicative of her breach of contract and federal statutory claims.³ As explained fully infra, counts 3, 8, 11 (insofar as it is alleged on behalf of Franchi individually) and 12 are dismissed, while the remaining claims will proceed through litigation in the normal course.

A. The federal claims

NHS argues that Franchi has failed to allege that CF suffered from the "disability" or "handicap" necessary to bring her within the protections of the ADA, the Rehabilitation Act, and the FHA. NHS further argues that the FHA does not apply because the school's dormitories are not "dwellings," and that Franchi has failed to state a claim under Title IX because she has not alleged that CF suffered discrimination "on the basis of sex." The court will consider these arguments in turn.

1. "Disability"/"Handicap"

Title III of the ADA, in relevant part, provides that "[n]o person shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, or accommodations of any place of public accommodation by any person who owns, leases ... or operates [it]." 42 U.S.C. § 12182(a). The Rehabilitation Act, also in relevant part, provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The FHA, again in relevant part, makes it...