Franchi v . New Hampton School CV-08-395-JL 9/18/09 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Debra Franchi

v. Civil N o . 08-cv-395-JL Opinion N o .

New Hampton School

O R D E R

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,

(D.N.H. 2009).

This court has subject-matter jurisdiction under

(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,

4 4 , 555 (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.”

By the same

token, the showing does not require “detailed factual

allegations,”

simply “enough factual matter (taken as true)

to suggest” the plaintiff’s right to relief,

.

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

2 potential dismissal and an opportunity to respond to i t . See,

e.g., Martinez-Rivera v . Sanchez Ramos,

, 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.,

2 0 , 324 (1st Cir. 2008). Franchi’s daughter, C F , 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

3 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,

1 According to the outpatient clinic that evaluated CF in November 2007, her “ideal weight based on her height was between

4 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”),

(count 1 ) ;

123 and 125 pounds.” According to the intake coordinator at another clinic where Franchi tried to place CF in January 2008, though, CF’s weight loss that month placed her at only “93% of her ideal body weight and not in need of urgent care,” which is not necessary until a patient reaches 85% of her ideal weight.

5 • violation of § 504 of the Rehabilitation Act,

(count 2 ) ;

• violation of Title IX of the Education Amendments of 1972,

(a) (count 3 ) ;

• violation of the Fair Housing Act (“FHA”),

(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 1 0 ) ;

• negligent infliction of emotional distress (count 1 1 ) ;

• intentional infliction of emotional distress (count 1 2 ) ;

• “respondeat superior/vicarious liability/agency” (count 1 3 ) ; and

• violation of the New Hampshire Consumer Protection Act,

-A (count 1 4 ) . 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

2 Franchi has voluntarily dismissed counts 5 and 6.

6 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 I X , 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

3 While this court recognizes that “[a]s a general matter, sua sponte dismissals are strong medicine, and should be dispensed sparingly,” Martinez-Rivera,

(internal quotation marks omitted), considering such a course of action was appropriate here to avoid repeating the situation that occurred in Brodeur. There, the plaintiffs brought a similar twelve-count complaint against a school and other defendants, who did not move to dismiss, but, as trial neared, moved for summary judgment on all counts. Though the motion was denied in part, dealing with the multitude of claims required a 77-page order which the court

7 (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

was constrained to prepare in a short time, given the imminence of trial. This timing also put the parties and their counsel on a shortened schedule for filing motions in limine and other final pretrial materials. Considering the adequacy of at least some of the plaintiffs’ twelve claims at the pleadings stage, as the court is doing here, would have ameliorated these consequences.

8 accommodation by any person who owns, leases . . . or operates

[it].”

(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 i n , be

denied the benefits o f , or be subjected to discrimination under

any program or activity receiving Federal financial assistance.”

(a). The FHA, again in relevant part, makes it

unlawful “[t]o discriminate in the sale or rental, or otherwise

to make unavailable or deny, a dwelling to any buyer or renter

because of a handicap of,” among others, “that buyer or renter.”

(f)(1).

All these statutes use the same definition of “disability”

or “handicap”: “(A) a physical or mental impairment that

substantially limits one or more major life activities . . . ;

(B) a record of such an impairment; or (C) being regarded as

having such an impairment.”

(1) (formatting and

parenthetical omitted);

§ 3602(h) (defining “handicap” nearly

identically);

(20)(B) (defining “individual with a

disability” under

(a) as “any person who has a

disability as defined in”

). NHS argues that

CF’s eating disorder, as described in the amended complaint, does

9 not fit the statutory definition of “disability” because it does

not “substantially limit one or more major life activities.”

As Franchi points out, the ADA was recently amended t o ,

among other things, specify that “major life activities include,

but are not limited to . . . eating.” ADA Amendments Act of 2008

(“ADAAA”), Pub. L . 110-325, sec. 3 ( a ) ,

, 3554

(codified at

(2)(A) (2005 & supp. 2008)). 4 But

NHS argues that, while eating is a “major life activity,”

Franchi has failed to allege that it was “substantially limited”

in CF’s case by her eating disorder. This argument depends on

too stringent a view of the “substantially limits” standard.

The Supreme Court had previously construed the phrase

“substantially limits one or more major life activities” in the

ADA to mean “prevents or severely restricts the individual from

doing [those] activities.” Toyota Motor Mfg., Ky., Inc. v .

4 The ADAAA made the same change to the definition of “disability” in the Rehabilitation Act. Pub. L . 110-325, sec. 7 ( 2 ) , 122 Stat. at 3558 (codified at

(20)(B)). While the effective date of the ADAAA was not until January 1 , 2009,

sec. 8 , 122 Stat. at 3559, after the events at issue in this case, NHS does not question that the ADAAA’s definition of “major life activities” o r , for that matter, any of its other provisions, applies here. Nor does NHS question that the ADAAA’s new definition of “disability” also applies to the FHA. So the court need not, and does not, decide whether the ADAAA applies retroactively to events that occurred prior to their enactment, but notes that, as the citations to pre-ADAAA caselaw infra suggest, Franchi’s claim would survive dismissal even under that more rigorous standard.

U.S. 1 8 4 , 198 (2002). But Congress later found

that the case had “interpreted the term ‘substantially limits’ to

require a greater degree of limitation than was intended,” Pub.

L . 110-325, sec. 2(a)(7), 122 Stat. at 3553, and passed the ADAAA

in part to reject that reading, id. § 2(b)(4), 122 Stat. at 3554.

To this end, the ADAAA inserted “Rules of construction” that

the term “disability in [the ADA] shall be construed in favor of

broad coverage of individuals under [the A D A ] , to the maximum

extent permitted by the terms of [the ADA]” and “‘substantially

limits’ shall be interpreted consistently with the findings and

purposes of the” ADAAA. Id. sec. 4 ( a ) , 122 Stat. at 3555

(codified at

(4)(A), ( B ) ) . These enumerated

purposes include “that the primary object of attention in cases

brought under the ADA should be whether entities covered under

the ADA have complied with their obligations, and . . . that the

question of whether an individual’s impairment is a disability

under the ADA should not demand extensive analysis.”

sec.

2(b)(5), 122 Stat. at 3554.

NHS’s argument that Franchi has not adequately pled that

CF’s eating disorder “substantially limited” her eating so as to

constitute a disability under the ADA is inconsistent with this

Congressional mandate. The amended complaint states that, after

spending six straight weeks in outpatient and inpatient eating

11 disorder clinics from late November 2007 to early January 2008,

CF nevertheless lost nearly five pounds in the subsequent 16-day

period, dropping her weight to 93 percent of its ideal total.

These allegations state a claim that CF’s eating disorder

substantially limited her eating, particularly under the “broad”

construction dictated by the ADAAA. See, e.g., Rohr v . Salt

River Project Agric. Imp. & Power Dist.,

5 0 , 859-62

(9th Cir. 2009) (applying pre-ADAAA standards but treating “the

original congressional intent as expressed in the [ADAAA]” as

relevant to the analysis in reversing summary judgment against a

plaintiff claiming diabetes substantially limited his eating).

In Rohr, in fact, the court rejected an argument similar to

NHS’s here: that, because the amended complaint alleges that CF

“manages her disability” and was doing so at the time NHS

discharged her, the eating disorder could not have been

“substantially limiting” as a matter of law. Rejecting the view

that the plaintiff’s diabetes was not a disability because it

required only that “he stays on his medicines and watches what

and when he eats,” Rohr observed that the plaintiff “alleged

substantial limitations on his eating in spite of his medicine

and insulin,” including the need to monitor all aspects of his

food intake closely. Id. at 860. That could amount to a

substantial limitation, the court explained, because “[s]traying

12 from a diet for more than one or two meals is not a cause for

medical concern for most people, and skipping a meal, or eating a

large one, does not expose them” to health risks. Id.

The same is true of CF’s alleged condition, which required a

careful watch over her food intake to protect against potentially

dangerous weight loss. See also Lawson v . CSX Transp., Inc.,

(7th Cir. 2001) (rejecting the view, pre-ADAAA,

that a plaintiff “could be substantially limited in his ability

to eat only if his actual physical ability to ingest food is

restricted,” because it “failed to consider the extent of the

restrictions imposed by [his] treatment regimen and the

consequences of noncompliance”); McCusker v . Lakeview Neurorehab.

Ctr., Inc.,

5 8 , 10 (rejecting the argument that the

plaintiff’s diabetes was not a disability because it “does not

limit his ability to eat, it mandates that he do so” as

“misapprehend[ing] the meaning of substantially limits under the

ADA”) (internal quotation marks and ellipse omitted). Even under

the pre-ADAAA definition of “substantially limits,” then, Franchi

has adequately pled that CF’s eating disorder substantially

limited her eating, a major life activity.

While the amended complaint could have spelled out the

limiting effect more clearly, the court of appeals has

instructed--in another case decided prior to the ADAAA--that a

13 successful ADA claim does not require “excruciating details as to

how the plaintiff’s capabilities have been affected by the

impairment,” even at the summary judgment stage. Gillen v .

Fallon Ambulance Serv., Inc.,

1 , 24 (1st Cir. 2002).

As the court noted, such a rule would create a “catch-22: in

order to demonstrate that she is disabled, the plaintiff also

would have to demonstrate why she is unqualified,” thus dooming

her claim under Title I of the ADA, which prevents discrimination

against a qualified individual with a disability in the

employment context.

While, under Title I I I , Franchi need

not prove that CF was “qualified,” the same reasoning applies:

she does not have to allege that CF’s eating disorder made her a

danger to herself or others, justifying her expulsion from NHS,

in order to reach the threshold of disability under the ADA.

CF’s success in controlling her eating disorder, as alleged

in the amended complaint, may well be relevant to the ultimate

question of whether it substantially limited her eating--but that

ultimate question is not yet ready for an answer. Indeed, as NHS

candidly acknowledges, all of the cases it cites in support of

its argument for dismissal of Franchi’s ADA claim “engaged in a

factual inquiry as to whether the evidence before the court

supported the claim that the conditions alleged ‘substantially

limited major life activities.’” That kind of inquiry cannot be

14 conducted on the basis of the amended complaint alone which, as

just explained, alleges “enough factual matter (taken as true) to

suggest” the plaintiff’s right to relief under the ADA. Bell

Atl., 550 U.S. at 556. NHS’s motion to dismiss Franchi’s claims

under the ADA, Rehabilitation Act, and FHA because she has failed

to allege that CF has a “disability” or “handicap” is denied.

See, e.g., McCusker,

5 8 , 8-10 (denying motion to

dismiss ADA claim as insufficiently alleging a disability).

2. “Dwelling”

NHS also argues that Franchi has no valid FHA claim because

the school’s dormitories are not a “dwelling” subject to the

statute. The FHA defines “dwelling” as “any building, structure,

or portion thereof which is occupied a s , or designed or intended

for occupancy a s , a residence by one or more families.”

(b). At first blush, this definition would appear

to exclude school dormitories, which ordinarily do not house

“families,” but the FHA instructs that “‘[f]amily’ includes a

single individual.’”

(c). Because a boarding

school dormitory is occupied as a residence by one or more

individuals, then, it fits the statutory definition of dwelling.

In line with this analysis, a handful of courts have ruled

that a school dormitory is in fact a “dwelling” subject to the 15 FHA. See United States v . Mass. Indus. Fin. Agency,

1 , 26 n.2 (D. Mass. 1996) (granting summary judgment for

plaintiffs on the issue of whether a residential school

“satisfies the definition of ‘dwelling’” in the FHA, but noting

the defendant did not dispute i t ) ; United States v . Hughes Mem’l

Home,

4 4 , 548-49 (W.D. V a . 1975) (ruling that

residences at children’s home that provided schooling were

“dwellings”); see also Robert G. Schwemm, Housing Discrimination

Law and Litigation § 9:2 (2007). NHS has not provided any

authority to the contrary.

Instead, NHS argues that a regulation promulgated by the

Department of Housing and Urban Development contains an

“elaboration” on the statutory definition of “family” that

“clearly excludes a secondary school.” The regulation, however,

actually defines “familial status” as “one or more individuals

(who have not attained the age of 18 years) being domiciled with”

either a “[a] parent or other person having legal custody” or

that person’s designee.

(2009) (formatting

omitted). “Familial status,” of course, is another prohibited

basis of discrimination under the FHA,

(b), so

there is no reason to believe HUD’s definition of that term also

serves as a definition of “family” in the way NHS suggests.

16 Indeed, § 100.20 contains the same definition of “dwelling” as

that contained in the FHA itself.5

NHS also argues that, because “one’s ability to live in

housing associated with an educational institution is necessarily

dependent upon one’s entitlement to attend [it],” calling

dormitories “dwellings” under the FHA could interfere with an

institution’s educational mission by, for example, forcing a

single-sex boarding school to open its doors to members of the

opposite sex. This is a valid point, but if the FHA can be read

to exclude school dormitories from its scope, that reading cannot

depend on its definition of “dwellings” in the way NHS urges.

NHS has not challenged Franchi’s FHA claim on any other basis,

though, so its motion to dismiss that claim must be denied.

3. Title IX

NHS is correct that Franchi has not stated a claim under

Title I X , which provides that “[n]o person in the United States

5 While the clear language of § 100.20 makes further inquiry unnecessary to determine its meaning, see Textron Inc. v . Comm’r,

6 , 31 (1st Cir. 2003) (citing, inter alia, Comm’r v . Soliman,

6 8 , 174 (1993)), the court notes that in enacting the rule, HUD specifically rejected public comments “to provide comprehensive examples” of “dwellings,” opting “to leave open the extent and scope of the term[]” instead. Implementation of Fair Housing Amendments Act of 1988,

, 3238 (Jan. 2 3 , 1989). So the rule provides no support for NHS’s position.

17 shall, on the basis of sex, be excluded from participation i n , be

denied the benefits o f , or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance,” with a number of exceptions not relevant here.

(a). Franchi does not allege that NHS excluded CF

from participation in its programs “on the basis of sex,” but on

the basis of her eating disorder. “Discrimination on the basis

of sex is the sine qua non of a Title IX . . . case, and a

failure to plead that element is fatal.” Frazier v . Fairhaven

Sch. Comm.,

2 , 66 (1st Cir. 2002).

Franchi argues that she has in fact alleged discrimination

on the basis of CF’s sex on the theory that “eating disorders

disproportionately impact adolescent females.” While “Title I X ,

like other anti-discrimination schemes, permits an inference that

a significant gender-based statistical disparity may indicate the

existence of discrimination,” Cohen v . Brown Univ.,

(1st Cir. 1996), Franchi alleges nothing of the sort.

“‘“Disparate impact” claims involve . . . practices that are

facially neutral in their treatment of different groups but that

in fact fall more harshly on one group than another and cannot be

justified’” on a neutral basis. Prescott v . Higgins,

2 , 41 (1st Cir. 2008) (quoting Hazen Paper C o . v . Biggins,

0 4 , 609 (1993)) (bracketing omitted). Franchi alleges no

18 such practice, e.g., that NHS regularly discharges students with

eating disorders, resulting in the dismissal of more girls than

boys since girls are the ones who usually suffer from them.6

To the contrary, Franchi claims that NHS actually

communicated a policy of attempting to assist students with

eating disorders, but deviated from that policy in CF’s case.

“Where [a defendant] targets a single plaintiff . . . there is

simply no basis for a disparate impact claim.” Bramble v . Am.

Postal Workers Union,

1 , 26 (1st Cir. 1998). NHS’s

motion to dismiss Franchi’s Title IX claim is granted.

B. The state-law claims

1. Breach of fiduciary duty

In moving to dismiss Franchi’s claim for breach of fiduciary

duty, NHS argues that no fiduciary relationship existed between

it and CF as a matter of law. Franchi’s argument to the contrary

is based on the New Hampshire Supreme Court’s decision in

Schneider v . Plymouth State College,

5 8 , 462 (1999),

that “[i]n the context of sexual harassment by faculty members,

6 At oral argument, Franchi requested leave to amend her complaint to allege such a practice, but is unclear what the good-faith basis of that allegation would b e , at least at this stage. Should discovery turn up evidence of such a practice, of course, Franchi may seek leave to amend at that point, and the court will decide that motion according to the usual standards.

19 the relationship between a post-secondary institution and its

students is a fiduciary one.” This case, however, involves

neither a post-secondary institution nor sexual harassment by

faculty members. This court predicts that the New Hampshire

Supreme Court would not expand the obligations imposed by

Schneider beyond its context and into the circumstances here.

Predicting the New Hampshire Supreme Court’s course on an

undecided issue of law requires “an informed prophecy of what

[it] would do in the same situation, seeking guidance in

analogous state court decisions, persuasive adjudications by

courts of sister states, learned treatises, and public policy

considerations identified in state decisional law.” Walton v .

Nalco Chem. Co.,

3 , 20 (1st Cir. 2001) (internal

quotation marks omitted). It also demands “considerable caution”

and respect for the “well-marked boundaries” of New Hampshire

law. Doyle v . Hasbro, Inc.,

(1st Cir. 1996)

(internal quotation marks omitted). In particular, where a

plaintiff, like Franchi, chooses a federal forum to litigate

state-law claims, she “cannot realistically expect the federal

court to open new state-law frontiers.” DCPB, Inc. v . City of

Lebanon,

(1st Cir. 1992).

In Schneider, a jury awarded a plaintiff $150,000 in

compensatory and enhanced damages on claims for violation of

20 Title IX and breach of fiduciary duty against her former college.

. The jury found that the college failed to

investigate the plaintiff’s complaints that her male professor

and academic advisor had engaged in “a pattern of sexual

harassment and intimidation” toward her. Id. at 461. This

included “taking off her shirt, and placing her hand on his

genitalia” and, after the plaintiff rebuffed these advances,

yelling at her, threatening her, ridiculing her in front of other

faculty, and giving her an unfairly low grade. Id.

In affirming the verdict on the fiduciary duty claim,7 the

New Hampshire Supreme Court noted that a fiduciary relationship

“‘may exist under a variety of circumstances, and does exist in

cases where there has been a special confidence reposed in one

who, in equity and good conscience, is bound to act in good faith

and with due regard to the interests of the one reposing the

confidence.’”

(quoting Lash v . Cheshire County

Sav. Bank,

(1984) (quotation marks and

7 The plaintiff conceded error in the Superior Court’s jury instructions on the Title IX claim, but argued that remand, rather than judgment in the college’s favor, was the appropriate remedy.

. While the Supreme Court did remand the Title IX claim, it did not otherwise address it because the jury had returned a general verdict, which the Supreme Court affirmed on the basis of the fiduciary duty claim. Thus, had the Supreme Court ruled that no fiduciary relationship existed, it would have needed to vacate the verdict and remand for another trial, despite the egregious nature of the conduct at issue.

21 formatting omitted by the court)). In light of this standard,

the court held that “[i]n the context of sexual harassment by

faculty members, the relationship between a post-secondary

institution and its students is a fiduciary one,” since

“[s]tudents are in a vulnerable situation because the power

differential between faculty and students makes it difficult for

students to refuse unwelcome advances and also provides the basis

for negative sanctions against those who refuse.”

(quotation

marks, bracketing, and ellipse omitted).

The court also made clear, however, that its “conclusion

that a fiduciary relationship existed between the defendant[] and

the plaintiff does not rest on the in loco parentis doctrine.”

Id. at 463. Under that doctrine, the court explained, “a special

relationship exists between primary and secondary schools and

their students” which “imposes a duty of care upon schools to

protect students.” Id. (citing Marquay v . Eno,

0 8 ,

717-18 (1995)) (emphases added). While that relationship is

based “in part on the role of schools as parental proxies over

minor students,” the court continued, “[i]n contrast, the

fiduciary relationship in this case rests on the unique

relationship described above,” i.e., the “professional

relationship of trust and deference, rarely seen outside the

academic community,” between a university and its students.

22 As this court observed in Brodeur, the New Hampshire Supreme

Court in Schneider thus drew a distinction between the fiduciary

duty that a post-secondary school owes its students to protect

them from sexual harassment by faculty, and the duty of care that

a primary or secondary school owes its students.

n.24. While those schools stand in loco parentis--a

“special relationship with students entrusted to their care,

which imposes upon them certain duties of reasonable

supervision,” Marquay,

--colleges and universities

generally do not, because “[t]he in loco parentis doctrine has

little application to the relationship between colleges and

universities and their students.” 3 James A . Rapp, Education Law

§ 8.01[2][b][iii], at 8-9 (2008) (citing cases). Indeed, the New

Hampshire Supreme Court has clarified that Marquay did not

“identif[y] a fiduciary duty” between a secondary school and its

students, but a common-law duty of care. Berry v . Watchtower

Bible & Tract Soc’y of N.Y., Inc.,

0 7 , 415 (2005). As

a matter of law, then, the nature of the duty owed from NHS--a

secondary school--to CF was a duty of care arising out of its in

loco parentis status as in Marquay, rather than a fiduciary duty

arising from any “unique relationship” as in Schneider.

Rather than tying the claimed duty to a “unique

relationship,” Franchi argues that a fiduciary duty arises any

23 time “a plaintiff puts a special trust or reliance upon an

institution,” as she claims to have done on CF’s behalf in

enrolling her at NHS despite her eating disorder. While this

court acknowledges that Schneider linked the existence of a

fiduciary duty to the plaintiff’s “special confidence” in the

defendant,

6 2 , the balance of the opinion makes

clear that “special” does not mean simply “unusual,” but “unique”

or at least “rarely seen,” id. at 463. Otherwise, any number of

relationships characterized by a duty of care, demanding simply

“what reasonable prudence would require under similar

circumstances,” Carignan v . N.H. Int’l Speedway, Inc.,

(2004) (internal quotation marks omitted), would become

fiduciary, triggering an elevated duty to “behave in a selfless

fashion,” Lash,

(internal quotation marks

omitted), as long as the party owed the duty could claim some

“special trust.”8 Schneider did not hearken such a fundamental

change in the law, though it may have been groundbreaking in

8 The most obvious example may be the doctor-patient relationship, where the patient no doubt places “special trust or reliance” in the doctor, but the duty to use reasonable care under the circumstances--rather than a fiduciary duty--governs. See, e.g., Smith v . Cote,

3 1 , 240 (1986).

24 imposing a fiduciary duty on a college to protect students from

sexual harassment.9

Indeed, Franchi has not pointed to any authority extending

the fiduciary duty recognized in Schneider beyond the “unique

relationship” identified in that case, and this court is not

aware of any. To the contrary, courts, including this one, have

declined to do s o . See Evans v . Taco Bell Corp.,

3 2 ,

33-35 (distinguishing Schneider in ruling that “the relationship

between a fast food restaurant and its patrons is not of

[fiduciary] character, even if the patrons have come to depend on

the restaurant for quality meals”); Leary v . Wesleyan Univ., N o .

55003943,

, at *12 (Conn. Super. C t . Mar. 1 0 , 2009)

(distinguishing Schneider in rejecting fiduciary duty claim

against a university arising out of a student’s suicide; holding

9 Most courts have treated the relationship between a college or a university and one of its students as essentially contractual in nature. “That the relationship between a university and its students has a strong, albeit flexible, contractual flavor is an idea pretty well-accepted in modern case law.” Dinu v . Pres. & Fellows of Harvard Coll.,

(D. Mass. 1999); see also, e.g., Lyons v . Salve Regina College,

0 0 , 202 (1st Cir. 1977) (applying Rhode Island law) (quoting Slaughter v . Brigham Young Univ.,

2 2 , 626 (10th Cir. 1975)); 3 Rapp, supra, § 8.01[2][d][I], at 8-16 & n.80 (citing cases from a number of jurisdictions). Despite its apparent departure from this paradigm in Schneider, the New Hampshire Supreme Court discussed none of this authority, including one of its own prior cases holding that the relationship between a university and its students “is primarily governed by contract principles.” Gamble v . Univ. Sys. of N.H.,

(1992).

25 that “a dependent relationship” does not suffice to establish a

fiduciary duty); Gonzalez v . Univ. Sys. of N.H., N o . 451217,

, at *20 (Conn. Super. C t . Jan. 2 8 , 2005) (applying New

Hampshire law to reject a fiduciary duty claim arising out of a

college’s alleged failure to supervise its cheerleading club,

calling it “a far cry from Schneider” in the absence “of a misuse

of a power differential . . . or abuse of a professional

relationship of trust and deference”); see also 3 Rapp, supra,

§ 8.01[2][d][g], at 8-27--28 (noting that “fiduciary theory has

not been widely embraced” in defining the student-institution

relationship, except for in Schneider and “the special

relationship that exists between an educational institution . . .

and graduate students engaged in original research,” to protect

the student from plagiarism) (footnote omitted). 10

10 This court’s own research uncovered one case denying summary judgment against a student on her claim for breach of fiduciary duty arising out of her college’s failure to accommodate her disabilities during a study abroad program, reasoning that the student had “reposed growing trust and confidence” in the college as it promptly resolved previous accessibility problems that she encountered on the campus.” Bird v . Lewis & Clark Coll.,

(D. O r . 2000). And court of appeals for the Ninth Circuit later affirmed a jury’s finding that the college owed the plaintiff a fiduciary duty based on those facts, in addition to the college’s assurances that it would accommodate her disability.

(9th Cir. 2002). Putting aside the fact that Franchi does not rely on Bird, the court declines to follow it because (1) it relies on too loose a notion of the “special confidence” needed to create a fiduciary relationship and (2) in any event, it arose in a post-secondary setting.

26 In line with these authorities, this court rules that, even

if the allegations of Franchi’s amended complaint suggest that

she placed “a special trust or reliance” in NHS on CF’s behalf,

that was insufficient to give rise to a fiduciary duty. Though

NHS, like any other secondary school, owes its students a duty to

use reasonable care to protect them, this court predicts that the

New Hampshire Supreme Court would not extend its holding in

Schneider to elevate that duty to a fiduciary one under the

circumstances alleged here. NHS’s motion to dismiss Franchi’s

claim for breach of fiduciary duty is granted.

2. Violation of the Consumer Protection Act

NHS also moves to dismiss Franchi’s claim against it under

the New Hampshire Consumer Protection Act. The Act provides that

“[i]t shall be unlawful for any person to use any unfair method

of competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within this state.”

-A:2. NHS argues that, first, the relationship

between a school and its students does not fit within the “trade

or commerce” governed by the Act and, second, the amended

complaint fails to allege anything approaching the “unfair or

deceptive act[s] or practice[s]” prohibited by the Act.

27 NHS’s first argument is based on Brzica v . Trustees of

Dartmouth College,

(2002). There, the New Hampshire

Supreme Court ruled that “the ‘trade or commerce’ requirement of

the statute [was] not met” in a case claiming that a college had

fraudulently solicited donations from alumni without disclosing

that its trustees had decided to eliminate single-sex

fraternities and sororities from campus, because the donations

“were not business transactions and contributors of such gifts

are not consumers seeking to purchase goods or services.”

. But NHS does not explain how Franchi, who was not making

a gift to the school but paying tuition in exchange for CF’s

education there, equates with the alumni donors in Brzica, and

that proposition is not apparent to the court. In any event, the

court need not decide whether NHS is correct that Franchi has not

alleged “trade or commerce,” because the court agrees that she

has not alleged the “unfair or deceptive act or practice” which

is also essential to her consumer protection claim.

While the Consumer Protection Act lists several categories

of unfair or deceptive acts or practices,

-A:2, I-XIV, Franchi does not attempt to fit NHS’s alleged

actions into any of those categories, which would not appear to

accommodate NHS’s alleged behavior. That is not the end of the

matter, though, because the Act outlaws conduct “includ[ing], but

28 not limited to” that listed in the categories; thus, other

conduct may amount to unfair or deceptive acts or practices,

provided it is “of the same type as proscribed by the enumerated

categories.” New Hampshire v . Moran,

5 0 , 452 (2004).

But, in addition, “‘[t]he objectionable conduct must attain a

level of rascality that would raise an eyebrow of someone inured

to the rough and tumble of the world of commerce.’” Barrows v .

Boles,

8 2 , 390 (1996) (quoting Levings v . Forbes &

Wallace, Inc.,

(Mass. App. C t . 1979)

(construing Massachusetts Consumer Protection Act)).

NHS’s alleged conduct--which the amended complaint specifies

as “making misrepresentations as to [the school’s] ability and

willingness to educate [CF]”--does not meet this standard. The

only statements by NHS about its “ability and willingness to

educate [CF]” which the amended complaint identifies are

generalized assurances, e.g., “CF’s eating disorder would not be

a problem as long as CF was responsible regarding her health”;

that NHS counselors “are here . . . to listen, understand, and

offer support to you as you work towards confronting and

resolving your problems,” including eating disorders; and that

“[w]e will do everything we can to support [CF] and the

recommendations coming from” her outpatient clinic. As this

court has previously noted, these kinds of vague statements

29 cannot support a consumer protection claim. See Private Jet

Servs. Group, Inc. v . Sky King, Inc.,

, 13-14; Evans,

3 2 , 32-33 & n.19.

And, assuming that they could, and assuming that NHS

dishonored them by discharging CF as alleged, broken promises

alone do not rise to the level of rascality where successful

Consumer Protection Act claims dwell.11 “An ordinary breach of

contract claim does not present an occasion for the remedies

under the Consumer Protection Act.” Barrows,

;

see also McNeal v . Lebel,

5 8 , 469 (2008) (affirming

ruling that home builders did not violate RSA 358-A by breaking

their promise “to deliver and complete a reasonably defect-free

house in six weeks when they knew they couldn’t, or were at least

indifferent as to whether they could”) (internal quotation marks

omitted). 12 NHS’s motion to dismiss Franchi’s Consumer

Protection Act claim is granted.

11 The same reasoning applies to NHS’s alleged misstatements about its “ability and willingness to comply with state and federal law”--leaving aside that the amended complaint fails to identify any statements to that effect. 12 The only case on which Franchi relies is Snow v . American Morgan Horse Ass’n,

(1996), where the court ruled that fraudulently registering foals as the offspring of a particular mare was not “trade or commerce” that “implicated the Consumer Protection Act.”

. That case is not helpful to her.

30 3. Infliction of emotional distress

As discussed supra, this court ordered Franchi to show, with

reference to its Brodeur decision “and any other relevant

authority, how her first amended complaint states a claim for

. . . negligent infliction of emotional distress by Deborah

Franchi in her individual capacity, and intentional infliction of

emotional distress” (numbering omitted). Franchi submitted a

memorandum in response to that order, but it fails to show that

the amended complaint states either of those causes of action.

First, as this court noted in Brodeur, a parent can recover

in negligence for the emotional distress of injury to her child

under New Hampshire law only if that distress is “‘directly

attributable to the emotional impact of [the parent’s]

observation or contemporaneous sensory perception’ of the

defendant’s conduct.”

(quoting Corso v .

Merrill,

4 7 , 656 (1979)). The amended complaint does

not allege that Franchi experienced a “contemporaneous sensory

perception” of NHS’s discharging CF. While Franchi’s

supplemental memorandum relates that “she saw her distraught

daughter” upon arriving on campus to pick her up after her

discharge, that does not suffice (even if treated as a further

amendment to the complaint). Under the rule allowing a parent to

recover for emotional distress, “recovery will be denied if the

31 [parent] either sees the accident victim at a later time, or if

the [parent] is later told of the seriousness of the accident.”

Corso,

. In a further shortcoming, Franchi also

does not allege that she suffered “a painful mental experience

with lasting effects” that “manifest[ed] itself by way of

physical symptoms.” Id. at 653. She has failed to state a claim

on her own behalf--as opposed to on behalf of CF--for negligent

infliction of emotional distress.

Second, the amended complaint fails to state a claim for

intentional infliction of emotional distress on behalf of either

Franchi or CF. As an initial matter, the amended complaint seeks

recovery under this theory on behalf of “the minor Plaintiff”

only, not Franchi. Her supplemental memorandum nevertheless

argues a claim for intentional infliction of distress on her own

part, but, even treating that as a further amendment to the

complaint, the claim cannot succeed. Nor, for that matter, can

such a claim on behalf of CF.

Liability for intentional infliction of emotional distress

follows only from “‘extreme or outrageous conduct,’” which the

New Hampshire Supreme Court has defined as conduct “‘“so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”’”

32 Brodeur,

(quoting Mikell v . Sch. Admin.

Unit N o . 3 3 ,

(2009) (quoting Restatement

(Second) of Torts § 46 cmt. d, at 73 (1965))). NHS’s conduct

toward CF comes nowhere near this “formidable standard.” Id.

Indeed, in Mikell, the New Hampshire Supreme Court upheld

the dismissal of an intentional infliction of emotional distress

claim against a teacher who “misused her position of authority

over [a student] by making a false report of misconduct in an

effort to affect his disciplinary record and eventually expel

him.”

. The court refused to find that “the

alleged false accusation . . . , even coupled with [the teacher’s]

position of authority, rises to the level of extreme and

outrageous conduct necessary to sustain a claim for intentional

infliction of emotional distress.”

That case is controlling

here, where Franchi alleges, similarly, that NHS wrongfully

discharged C F , either in violation of its own statements and

policies or upon the mistaken belief that she was a danger to

herself or others--and does not even allege a “false accusation”

as in Mikell. Franchi has not stated a claim for intentional

infliction of emotional distress either on behalf of herself or

CF.13 13 It should be noted that, at oral argument, Franchi conceded that, but for the breach of contract claim, “all other counts belong to the minor,” CF. 33 4. The other state-law claims

While the court also ordered Franchi to explain how her

amended complaint stated a contract cause of action, NHS has

candidly acknowledged that, unlike Brodeur, the contract claim

arises out of more than simply the student handbook; indeed, at

oral argument, NHS made reference to an actual contract between

it and Franchi, and stated that this was “clearly” a breach of

contract case (though not conceding, of course, that any contract

was in fact breached). So that claim will not be dismissed. The

court also ordered Franchi to show why her negligence claims,

which allege violations of NHS’s duties under the ADA, the

Rehabilitation Act, and the parties’ contract, are not

duplicative of her statutory and contract claims; while the court

remains concerned that the claims completely overlap, it will not

strike the negligence counts at this point, leaving consolidation

of Franchi’s theories till the summary judgment or final pretrial

stage, if necessary.

III. Conclusion

This court has observed that “scattershot pleading is

disfavored and counterproductive.” Marier v . Town of Allenstown,

7 2 , 3 0 ; see also, e.g., Mueller C o . v . U.S. Pipe &

Foundry Co.,

6 8 , 1 7 ; DRN, Inc. v . Suffolk County

34 Constr. Co.,

0 1 , 12 (citing additional cases). That

i s , while creativity in “identifying all possible torts and

tortfeasors” out of a particular fact pattern may impress a

professor grading a law school exam, it will rarely impress this

court, given the extra work that approach generates for court and

counsel, particularly in forcing the consideration of difficult

legal questions that need not be surmounted in order for the

plaintiff to recover on some other, more clearly established,

theory. In light of these concerns, counsel for Franchi are

urged to consider winnowing down their theories even further as

the litigation progresses. For now, though, NHS’s motion to

dismiss14 is GRANTED as to counts 3 , 8 , and 14 and otherwise

DENIED; counts 11 (insofar as it is alleged on behalf of Franchi

individually) and 12 are also DISMISSED.

SO ORDERED.

Jo/eph N . Laplante U s ited States District Judge

Dated: September 1 8 , 2009

cc: Donna-Marie Cote, Esq. Peter E . Hutchins, Esq. Andrew W . Serell, Esq.

14 Document n o . 7 .

35