UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ PAULA GRAY, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1806 (GK) ) ) D.C. PUBLIC SCHOOLS, et al. ) ) Defendants. ) ___________________________________)

MEMORANDUM OPINION

Plaintiff, Paula Gray (“Plaintiff”), brings this action

against Defendants, D.C. Public Schools (“DCPS”) and D.C.

Government (collectively, “Defendants”), under the Individuals

with Disabilities Education Act (“IDEA”),

et

seq. Plaintiff asserts that Defendants failed to pay attorney’s

fees available under the IDEA after she prevailed in a due

process hearing involving benefits to which her child, a student

in the DCPS, was entitled under the Act.

This matter is now before the Court on Plaintiff’s Motion to

Remand1 [Dkt. No. 6], Plaintiff’s Motion for Leave to Amend the

1 Although it is not captioned as such, Plaintiff clarified in later filings that she intended the “Plaintiff’s Opposition to Defendants’ Notice of Removal” to be a Motion to Remand. Pl.’s Mem. of P. & A. in Resp. to Defs.’ Opp’n to Pl.’s Mot. to Remand at 2 [Dkt. No. 6]. The Court accepts Plaintiff’s renaming of her Motion (which will be referred to in this opinion as a “Motion to Remand”), and will rule on it. See Leitner v. United States, Civ. No. 09-2342,

(D.D.C. Complaint [Dkt. No. 12] and Defendants’ Motion to Dismiss and/or

for More Definite Statement [Dkt. No. 2]. Upon consideration of

the Motions, Oppositions, Replies, the entire record herein, and

for the reasons stated below, Plaintiff’s Motion for Remand is

denied, Plaintiff’s Motion for Leave to Amend the Complaint is

granted, and Defendants’ Motion to Dismiss and/or for More

Definite Statement is denied.

I. BACKGROUND

A. Factual Background

Plaintiff’s minor child is enrolled in the DCPS. Plaintiff

asserted that Defendants failed to provide Free and Appropriate

Public Education (“FAPE”) for her child, as required under the

IDEA. Compl. [Dkt. No. 1-2]. Parties participated in a due

process hearing. On February 16, 2009, the Hearing Officer

Determination (“HOD”) in Plaintiff’s due process hearing was

issued, granting Plaintiff the relief she sought. Am. Compl. at

¶ 9 [Dkt. No. 12-2]. Following the HOD, the Law Offices of

Christopher N. Anwah sent an invoice to Defendants for attorney’s

fees, on Plaintiff’s behalf. Id. at ¶ 4.

Jan. 18, 2010)(accepting plaintiff’s “Objection to Notice of Removal” as a Motion to Remand).

-2- B. Procedural Background

On August 20, 2009, Plaintiff filed a complaint in the

Superior Court for the District of Columbia for nonpayment of

attorney’s fees. Compl. [Dkt. No. 1-2]. Defendants removed the

matter to this Court on September 18, 2009. Not. of Removal [Dkt.

No. 1]. Defendants also filed a Motion to Dismiss and/or for

More Definite Statement on September 25, 2009, arguing that the

Complaint failed to state a claim upon which relief could be

granted. Defs.’ Mot. to Dismiss and/or for More Definite

Statement at ¶ 1 (“Mot. to Dismiss”)[Dkt. No. 2]. Instead of

responding to the Motion to Dismiss, Plaintiff first sought to

oppose removal, filing a Motion to Remand on October 1, 2009.

[Dkt. No. 3]. After the parties fully briefed the remand issue,

Plaintiff filed a Motion for Leave to Amend the Complaint on

January 19, 2010. [Dkt. No. 12]. The parties have also fully

briefed the request to amend the Complaint. Plaintiff has not

yet formally responded to Defendants’ Motion to Dismiss, but, for

reasons that will be discussed below, the Amended Complaint

renders the Motion to Dismiss moot.

I. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff need only plead “enough facts to state a claim to

relief that is plausible on its face” and to “nudge[ ][his or

-3- her] claims across the line from conceivable to plausible.” Bell

Atl. Corp. v. Twombly,

(2007). “[O]nce a claim

has been stated adequately, it may be supported by showing any

set of facts consistent with the allegations in the complaint.”

. A complaint will not suffice, however, if it

“tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009)

(citing Twombly,

).

Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs’ success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must

give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged.” Aktieselskabet AF 21. November

2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008)(internal

quotation marks and citations omitted).

III. ANALYSIS

A. Remand Is Not Appropriate Because the Removing Party Has Demonstrated that Removal Was Proper

To determine whether remand is appropriate, the Court must

consider whether it has subject matter jurisdiction over the case

to support removal. See Republic of Venezuela v. Philip Morris

Inc.,

(D.C. Cir. 2002) (citing 28 U.S.C. §

-4- 1447(c) for the proposition that “[w]hen it appears that a

district court lacks subject matter jurisdiction over a case that

has been removed from a state court, the district court must

remand the case.”). Removal is permitted for “any civil action

brought in a state court of which the district courts of the

United States have original jurisdiction.”

(a);

see Caterpillar, Inc. v. Williams,

(1987). The

removing party bears the burden of showing that federal subject

matter jurisdiction exists. See Your Girl Friday, LLC v. MGF

Holdings, Inc., Civ. No. 06-0385,

, at *2 (D.D.C.

Apr. 18, 2006). Any ambiguities regarding the existence of

removal jurisdiction must be resolved in favor of remand. Id.;

Nwachukwu v. Karl,

(D.D.C. 2002).

1. Federal Subject Matter Jurisdiction Exists Because Plaintiff’s Claim Was Brought Under a Federal Statute

This Court has original, federal question subject matter

jurisdiction over claims arising under federal statutes.

. Our Court of Appeals has stated that “[i]f a

plaintiff purports to assert a federal claim, the district court

has federal question jurisdiction unless the claim is ‘immaterial

. . . made solely for the purpose of obtaining jurisdiction or

. . . wholly insubstantial and frivolous.’” Herero People’s

Reparations Corp. v. Deutsche Bank, A.G.,

, 1194

-5- (D.C. Cir. 2004) (quoting Bell v. Hood,

(1946)); see Leitner,

, at *3. The IDEA is a

federal statute which expressly creates a cause of action for

attorney’s fees, providing that “[t]he district courts of the

United States shall have jurisdiction of actions brought under

this section without regard to the amount in controversy.”

(i)(3)(A).

Plaintiff makes a claim under the IDEA, citing the statute’s

provision “mandating payment” in her original Complaint. In her

Amended Complaint, Plaintiff specifies that “[t]he jurisdiction

of the court is based upon . . . § 1415(i)(3).” Am. Compl. at ¶

1. Because Plaintiff makes a claim under the IDEA, a federal

statute, this Court has subject matter jurisdiction over the

claim, and removal on this basis was appropriate.

2. Concurrent State Court Jurisdiction Does Not Destroy Federal Subject Matter Jurisdiction.

Plaintiff argues that because Defendants also violated the

law of the District of Columbia, the District of Columbia

Superior Court has concurrent jurisdiction, and that remand

should be granted because the Superior Court could decide her

claim. Pl.’s Mot. to Remand at ¶ 5. As other courts have

recognized, “the fact that the IDEA provides the plaintiff with

the choice of state or federal court does not preclude the

-6- removal of the resulting action to federal court.” Ullmo v.

Gilmour Acad.,

(6th Cir. 2001); see also Dorsey

v. City of Detroit,

(6th Cir. 1988) (finding

that “[t]he weight of judicial authority supports the conclusion

that a Congressional grant of concurrent jurisdiction in a

statute does not imply that removal is prohibited.”).

Plaintiff claims attorney’s fees under both the IDEA and a

local municipal regulation, 5 D.C. Mun. Regs. tit. 5-E, § 3032 et

seq. Compl.; Am. Compl. at ¶ 1. The local law, however, merely

provides a cause of action in the state court for claiming

attorney’s fees under the IDEA. D.C. Mun. Regs. tit. 5-E, §

3032.4. Thus, Plaintiff’s case turns on the resolution of one

issue, the amount of attorney’s fees to which she is entitled

under the IDEA. Although the claim could have remained in state

court, concurrent jurisdiction does not destroy this Court’s

jurisdiction over Plaintiff’s claim, and does not render removal

improper.

3. Plaintiff’s Claim Does Not Sound in Contract

Plaintiff also argues that her claim is actually a breach of

contract claim, which does not involve a federal question and

which therefore requires that the case be remanded. Pl.’s Mot.

to Remand at ¶¶ 3, 5. Other district courts in this circuit have

rejected this argument and ruled that claims for attorney’s fees

-7- brought pursuant to the IDEA are federal claims, not contract

claims. See, e.g., Elliot v. D.C. Pub. Sch., Civ. No. 09-1802,

(D.D.C. Dec. 2, 2009); Kirksey v. D.C. Pub. Sch.,

Civ. No. 09-1786,

(D.D.C. Dec. 2, 2009); Morgan

v. D.C. Pub. Sch., Civ. No. 09-1803,

(D.D.C. Dec.

2, 2009); Walker v. D.C. Pub. Sch., Civ. No. 09-1795,

(D.D.C. Dec. 2, 2009). This Court agrees that the relief

Plaintiff seeks is provided by federal statute, over which this

Court clearly has jurisdiction.

To support her argument that her claim sounds in contract,

Plaintiff cites Bowman v. District of Columbia, Civ. No. 05-

01933,

(D.D.C. Aug. 2, 2006). It is difficult to

understand why Plaintiff relies on Bowman. Not only did Bowman

refuse to extend federal jurisdiction to a contract issue related

to the IDEA, the case is inapposite because it concerned a

settlement agreement entered into by the parties, which is not

the situation in this case.

Plaintiff does not contend that she has entered into a

settlement agreement with Defendants. Defendants did tender

partial payment on other, similar claims for fees, and also

tendered partial payment to Plaintiff after she submitted a

payment voucher in this case. Pl.’s Mot. to Remand at ¶ 5, Pl.’s

Reply at ¶ 6. However, such payments do not present a breach of

-8- contract issue, and submission of a payment voucher is not

equivalent to a settlement agreement.2

4. Plaintiff’s Argument Regarding the Blackman-Jones Consent Decree Does Not Support Remand.

The Blackman-Jones Consent Decree applies to two classes of

plaintiffs. The class to which Plaintiff claims membership

consists of persons whose HODs or settlement agreements have not

been timely implemented. Blackman-Jones Consent Decree

(“Decree”) at 10, Civ. No. 97-1629 [Dkt. No. 1762-4]. However,

Plaintiff has not indicated that she has entered into any

settlement agreement with Defendants, or that any provision of

her HOD has not been implemented in a timely fashion. Therefore,

the Decree does not govern Plaintiff’s claim for attorney’s fees

in this case.

Furthermore, the Decree provides that the federal district

court shall monitor and enforce the Decree. The text explicitly

2 If, in the alternative, the Court were to treat Plaintiff as having made a breach of contract claim in addition to her IDEA claim, this claim would still not render remand improper. Where “a separate and independent claim or cause of action . . . is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.”

(c). The Court would still have jurisdiction to resolve the claim, and should do so, since the central question remains the amount Plaintiff is owed under the IDEA.

-9- states that the federal court shall retain jurisdiction. Decree

at 57. Thus, remand to the local court would be inappropriate,

even if the Decree governed Plaintiff’s claim.

B. Plaintiff May Amend the Complaint Because It Is In the Interest Of Justice and Will Not Unduly Prejudice Defendants.

Under Fed. R. Civ. P. 15(a), “a party may amend its pleading

once as a matter of course within . . . 21 days after service of

a motion under Rule 12(b) [or] (e).” Fed. R. Civ. P. 15(a)(1). 3

Thereafter, a party must obtain leave from the court or written

consent from the adverse party. Fed. R. Civ. P. 15(a)(2).

Plaintiff sought to amend her Complaint more than 21 days

after service of Defendants’ Motion to Dismiss. Defendants

refused to consent to the filing of an amended Complaint.

Therefore, Plaintiff now seeks leave from the Court. Mem. Pl.’s

Mot. for Am. Compl. at ¶ 3 [Dkt. No. 12-1].

The district court has discretion to grant or deny leave.

Firestone v. Firestone,

(D.C. Cir. 1996).

“When a party requests leave from the court . . . the leave

3 Rule 15 is quoted as amended, effective December 1, 2009. Prior to the amendment, the rule permitted a party to amend its pleading once as matter of course at any time before a responsive pleading was served. A Motion to Dismiss was not considered a responsive pleading for purposes of amending the complaint. Boyd v. District of Columbia,

(D.D.C. 2006).

-10- sought should . . . be freely given” in the absence of factors

including “undue delay, bad faith or dilatory motive . . .

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party, futility of

amendment, etc.” Foman v. Davis,

(1962);

Atchinson v. District of Columbia,

(D.C. Cir.

1996); Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C.,

(D.C. Cir. 1998).

None of these factors are present in this case. Defendants

do not claim that the Amended Complaint demonstrates bad faith or

dilatory motive or that the amendment is futile, and the

Amendment submitted by Plaintiff is her first attempt to cure the

deficiencies of the original Complaint. Mot. to Am. Compl.

Defendants contend that granting the amendment will cause

them undue delay and prejudice. Defs.’ Opp’n. to Pl.’s Mot. to

Amend Compl. at ¶ 10. [Dkt. No. 13]. They argue that the 21-day

limit contained in the recently amended Rule 15(a) adds a new

factor to those that the courts must consider in deciding motions

to amend. They argue that because Plaintiff’s request to amend

occurred after the 21-day window had closed, undue delay will

result if Plaintiff’s Motion is granted. Defs.’ Opp’n at ¶¶ 7-8.

Defendants misinterpret the new wording of the rule.

Plaintiff has, as Defendants point out, exceeded the 21-day limit

-11- for amending the Complaint as a matter of course under Rule

15(a)(1). However, this does not preclude amendment. Plaintiff’s

Motion falls under Rule 15(a)(2), which imposes no time limit and

instead leaves the decision whether to permit an amendment to the

discretion of the court. Fed. R. Civ. P. 15(a)(2) provides that

subsection (a)(2) applies “[i]n all other cases,” except

amendments by right under subsection (a)(1). Thus, the Court

need not consider the 21-day time limit as a factor in

determining whether to grant Plaintiff’s Motion. Furthermore, “a

court should not deny leave to amend based solely on time elapsed

between the filing of the complaint and the request for leave to

amend.” Bancoult v. McNamara,

(D.D.C.

2003)(citing Atchinson,

).

Our Court of Appeals has permitted an amendment requested

two years after the complaint was filed, and explained that

“[w]here an amendment would do no more than clarify legal

theories or make technical corrections, we have consistently held

that delay, without a showing of prejudice, is not a sufficient

ground for denying the motion.” Harrison v. Rubin,

(D.C. Cir. 1999). Plaintiff’s Motion, submitted five months

after the initial Complaint was filed, which seeks to add only

clarifications and details requested by Defendants in their

Motion to Dismiss and to increase the requested amount of fees in

-12- light of removal, does not create undue delay or undue prejudice

to Defendants.

C. Plaintiff’s Amended Complaint Renders Defendants’ Motion To Dismiss Moot.

When a plaintiff amends her complaint, it renders a motion

to dismiss that complaint moot. Wultz v. Rep. of Iran, Civ. No.

08-1460,

(D.D.C. Dec. 14, 2009) (citing Myvett v.

Williams,

, 62 n.1 (D.D.C. 2009) (ruling that

“[b]ecause the plaintiff filed an amended complaint after the

defendants moved to dismiss the original complaint, the court

denies as moot the defendants’ motion to dismiss the original

complaint.”); P & V Enterprises v. U.S. Army Corps of Engineers,

, 135 n.1 (D.D.C. 2006); Bancoult v. McNamara,

(D.D.C. 2003). Because the Court is granting

Plaintiff’s request to amend her Complaint, the court need not

reach the substance of Defendants’ Motion to Dismiss. Therefore,

the Motion is denied as moot, as is the alternative Motion for a

More Definite Statement.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Remand is

denied, Plaintiff’s Motion for Leave to Amend the Complaint is

-13- granted, and Defendants’ Motion to Dismiss and/or for More

Definite Statement is denied.

/s/

February 25, 2010 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

-14-