Moore v. Kan. City Pub. Sch.

828 F.3d 687

Katie Moore, as Next Friend on behalf of D.S., a minor, Plaintiff–Appellant

v.Kansas City Public Schools, also known as Kansas City Public School District; Southwest Early College Campus, also known as Southwest High School; Dr. R. Stephen Green, individually and as Superintendent of Kansas City Public Schools; Dr. Edwin Richardson, individually and as Principal of Southwest Early College Campus; Cecil Annette Billups, individually and as a Special Education Teacher at Southwest Early College Campus; Alice Coody, individually and as a Special Education Teacher at Southwest Early College Campus, Defendants–Appellees.

No. 15-2617

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2016

Filed: July 7, 2016

Rehearing and Rehearing En Banc Denied August 15, 2016^*

Edward D. Robertson, Jr., Bartimus Frickleton Robertson & Goza, Jefferson City, MO, argued (Anthony L. DeWitt, Mary D. Winter, Bartimus Frickleton Robertson & Goza, Jefferson City, MO, Tim Dollar, Ashley L. Ricket, Dollar Burns & Becker, LC, Kansas City, MO, on the brief), for appellant.

Tyson H. Ketchum, Armstrong Teasdale LLP, Kansas City, MO, argued (Lynn W. Hursh, Kevin W. Prewitt, Armstrong Teasdale LLP, Kansas City, MO, Thomas B. Weaver, Armstrong Teasdale LLP, St. Louis, MO, Ivan Nugent, Kansas City Public Schools, Legal Services Dept., Kansas City, MO, on the brief), for appellees.

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

RILEY, Chief Judge.

On behalf of D.S., a minor student with intellectual disabilities, Katie Moore sued Kansas City Public Schools (school district), Southwest Early College Campus (Southwest), the superintendent of the school district, the principal of Southwest, a special education teacher, and a para-professional at Southwest (collectively, defendants) in Missouri state court. The petition sought damages for premises liability and negligent supervision because D.S. was raped by another student in an unsupervised area of Southwest during the school day, and because D.S. was repeatedly bullied and sexually harassed by her classmates and peers. The school district and Southwest removed the lawsuit to the Western District of Missouri, see 28 U.S.C. § 1441(a), claiming Moore's causes of action arose under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. , and then moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6). The district court denied Moore's motion to remand and then dismissed the lawsuit for failure to exhaust IDEA administrative remedies. We now reverse.¹

I. BACKGROUND²

D.S. was a special education student at Southwest during the 2013-14 school year. Due to her intellectual and learning disabilities at the time relevant to the complaint, D.S. sometimes had trouble communicating and spoke in “baby talk.” D.S. also had difficulty perceiving danger and was “susceptible to suggestion due to her significant intellectual and learning disabilities.” When D.S. became frustrated, she tended to wander away. To accommodate her disability, D.S. had an “individualized education program” (IEP)³ under the IDEA put into place by the school district. See 20 U.S.C. §§ 1401(14), 1414(d)(1)(A)(i). D.S.'s IEP stated her attendance required improvement.

Although Southwest is equipped for up to 2,500 students, only about 600 attended the school during the 2013-14 school year. Because attendance was so below capacity, not all areas of the school were in use. Unused areas were unsupervised and supposed to be locked, and students were forbidden to enter. In August 2013, two students gained access to a locked area and allegedly raped a female student, leading the Kansas City Police Department to investigate the incident.

At school, D.S. was relentlessly bullied and harassed by her peers. Some of the harassment included “yelling at D.S. and telling her she was ugly”; “putting their hands under D.S.'s shirt, touching her ‘boobs' ”; and “slapping D.S. in the face.” D.S. told her teachers about the harassment, but the defendants “failed to take sufficient measures to correct the[ ] issues.” In March 2014, D.S. was sexually assaulted on at least three occasions by the same student, “under the same or similar circumstances as the August 2013 rape,” in one of the locked areas at Southwest. D.S. did not report these specific instances because her assailant threatened to kill her if she told anyone.

On April 1, 2014, around 10:44 a.m., a para-professional assigned to D.S.'s classroom watched D.S. leave the lunchroom and enter a hallway before the end of the period. Sometime between then and 2 p.m. that day, two students led D.S. through a set of unsecured doors, where a male student raped her while another female student acted as a “look-out.” The para-professional reported to a special education coordinator that D.S. was missing. D.S. never returned to class that day, and the Southwest security staff never made a record she was missing.

Around 2:00 a.m. the next morning, D.S. told her parents she was experiencing vaginal and anal pain. D.S. was taken to Children's Mercy Hospital, where it was confirmed D.S. had been vaginally and anally raped. Since the assaults, “D.S. has been diagnosed with numerous serious physical, social, mental, and emotional disorders that have further decreased D.S.'s ability to function independently and age-appropriately.”

Moore brought this petition for damages in the Circuit Court of Jackson County, Missouri. Moore's petition set out two causes of action under Missouri law. Count I charged the school district and Southwest with premises liability, alleging the school district and Southwest “exposed their students to dangerous physical defects and conditions on the [Southwest] premises.” See Mo. Rev. Stat. § 537.600.1(2) (waiving sovereign immunity). According to the petition, Southwest was “kept in an unsafe and dangerous condition, including but not limited to the physical defects with missing or broken locks on doors providing ingress and egress to ‘secure’ areas, including the areas where D.S. was sexually assaulted.” Count II asserted liability for negligent supervision against all defendants. Moore alleged the defendants “knew or should have known that a culture of bullying, discrimination, sexual assault, and sexual harassment existed at [Southwest]” and defendants “breached their ministerial duty to D.S.” by failing to report and properly address physical and sexual abuse at Southwest. See Mo. Rev. Stat. § 210.115.1 (requiring teachers and school officials to report abuse).

Claiming Moore's causes of action arose under the IDEA, the school district and Southwest timely filed a notice of removal to federal court⁴ , see 28 U.S.C. §§ 1441(a), 1446(a), and subsequently moved to dismiss, see Fed. R. Civ. P. 12(b)(1), (6). Asserting the district court should consider “ ‘the substance of the complaint, not the labels used in it’ ” (quoting In re Carter , 618 F.2d 1093, 1101 (5th Cir. 1980) ), the defendants argued that while Moore's petition “style[d] her causes of action on theories of premises liability and negligence pursuant to Missouri common law, her Petition substantively state[d] a claim under the [IDEA].” Pointing to the petition's references to D.S.'s IEP, the defendants claimed Moore “repackaged a federal IDEA claim ... in an attempt to avoid the federally mandated IDEA requirements and procedure.” Moore moved for remand to Missouri state court. The district court denied remand and granted the defendants' motion to dismiss. Moore appeals. She also requests that we award her attorney fees. See 28 U.S.C. § 1447(c).

II. DISCUSSION

The district court accepted the defendants' argument in favor of removal, characterizing Moore's state law claims as “not ‘wholly unrelated’ to the IEP process” (quoting M.P. ex rel. K. & D.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006) ). See also J.B. ex rel. Bailey v. Avilla R–XIII Sch. Dist. , 721 F.3d 588, 593 (8th Cir. 2013). The district court also emphasized that some of D.S.'s injuries that may require psychological treatment or counseling “could potentially be redressed under the IDEA.” The district court decided it had “original federal question jurisdiction” over the action because the petition “directly implicates, and seeks redress available under, the IDEA.” Moore maintains she did not plead a cause of action under the IDEA. We review the district court's order denying remand de novo. See Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, Inc. , 561 F.3d 904, 911–12 (8th Cir. 2009).

In deciding whether Moore's petition presents a federal question, we begin by applying the well-pled complaint rule. See Caterpillar Inc. v. Williams , 482 U.S. 386, 392–93, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). This long-standing doctrine “provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Id. at 392, 107 S.Ct. 2425. “[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ; accord Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal. , 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The proponents of federal jurisdiction bear “the burden to establish federal subject matter jurisdiction,” and “all doubts about federal jurisdiction must be resolved in favor of remand.” Cent. Iowa Power , 561 F.3d at 912. “[T]he plaintiff is master of his claim and may avoid federal removal jurisdiction by exclusive reliance on state law.”

M. Nahas & Co., Inc. v. First Nat'l Bank of Hot Springs , 930 F.2d 608, 611 (8th Cir. 1991).

On its face, Moore's petition does...