United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
J. LEON HOLMES, District Judge.
Brittany O is the parent of L, a child with a disability as defined in 21 U.S.C. § 1401(3). During the 2012-13 school year, L was a student enrolled in Thomas Jefferson Elementary School, which is within the Bentonville School District. L's diagnoses include attention deficit hyperactivity disorder, disruptive behavior disorder NOS, mood disorder NOS, oppositional defiant disorder, and sensory disorder. Brittany O alleges that L has been denied the right to receive a free appropriate public education and has experienced physical abuse, restraints, and seclusions, has been subjected to discrimination, has been deprived of opportunities and interaction with nondisabled peers, and has been segregated and subjected to excessive disciplinary removals from school.
In her amended complaint, Brittany O names as defendants the Bentonville School District; Michael Poore, Superintendent of the Bentonville School District; Tanya Sharp, Director of Special Education for the Bentonville School District; Brad Reed, Director of Student Services for the Bentonville School District; Amy Simpson, Section 504 Coordinator and Special Education Designee for Thomas Jefferson Elementary School; New Boston Enterprises, Inc., the parent company of Texarkana Behavioral Associates, L.C., operating under the names of Vista Health in Northwest Arkansas, as well as other fictitious names; Allen Morrison, a licensed professional counselor who was employed by Vista Health Outpatient Services; Veronica Odum, Program Manager for Vista TDT; the Arkansas Department of Education; Tony Wood, in his official capacity as Commissioner of the Arkansas Department of Education; and Tom Kimbrell, the former Commissioner of the Arkansas Department of Education.
Brittany O contends that the Bentonville School District did not provide L with a free appropriate public education. Rather, after identifying him as disabled, the Bentonville School District transferred L to a therapeutic day treatment facility, Vista Health TDT, which is operated by Texarkana Behavioral Associates. Brittany O's complaint alleges that Vista Health TDT simply warehouses children with mental disabilities, such as ADHD, and children who exhibit behavioral problems at school, for the purpose of billing Medicaid for their "treatment" and boosting their profits. She alleges that L was housed in "prison like" conditions at Vista Health TDT, and that he was denied a free appropriate public education. She also contends that the Arkansas Department of Education encouraged school districts to transfer students with disabilities to such day treatment facilities.
Brittany O's amended complaint alleges seven claims for relief. Her first claim for relief is brought under 42 U.S.C. § 1983, alleging that L's rights under the first, fourth, and fourteenth amendment due process and equal protection clauses have been violated by all of the defendants. Her second claim for relief is brought under the Individual With Disabilities Education Improvement Act of 2004 ("IDEA"), alleging that the Arkansas Department of Education failed to comply with its statutory requirement to monitor the Bentonville School District and to ensure that the Bentonville School District took effective measures to eliminate and remedy violations of the IDEA. Her third claim for relief seeks from the Bentonville School District an award of attorneys' fees under 20 U.S.C. § 1415(i)(3), based on the fact that she prevailed against the school district in an administrative hearing. Her fourth claim for relief is brought under the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq.  Brittany O's fifth claim for relief is brought against the Arkansas Department of Education, the Bentonville School District, and Texarkana Behavioral Associates pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Her sixth claim for relief is brought against the Arkansas Department of Education and the Bentonville School District pursuant to Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12134. Her seventh claim for relief is brought under state law against Poore, Reed, Sharp, Simpson, Kimbrell, Morrison, and Odum for depriving L of his right to a free public education, and against Texarkana Behavioral Associates, Morrison, and Odum, for fraud, outrage, assault, and battery.
In her prayer for relief, Brittany O requests that the Court award compensatory damages; punitive damages against Texarkana Behavioral Associates, Morrison, Odum, Poore, Reed, Sharp, and Simpson; costs and attorneys' fees as the prevailing party under due process; and injunctive relief against the Arkansas Department of Education and the Bentonville School District to prevent students from being transferred to a therapeutic day treatment facility operated by Texarkana Behavioral Associates.
The defendants have filed several motions to dismiss. The Bentonville School District defendants also have moved to transfer this action to the Western District of Arkansas.
I. MOTION TO DISMISS BY TEXARKANA BEHAVIORAL ASSOCIATES FOR FAILURE TO SERVE SUMMONS AND PROCESS WITHIN 120 DAYS
Brittany O commenced this action by filing a complaint on March 5, 2014. One of the defendants named in the original complaint was Vista Health, d/b/a Vista TDT, d/b/a Vantage Point of Northwest Arkansas. On July 16, 2014, Brittany O filed an amended complaint, naming as the defendant Texarkana Behavioral Associates, L.C., a wholly owned subsidiary, d/b/a Vista Health, d/b/a Vantage Point of Northwest Arkansas. That defendant is the same defendant identified in the original complaint as Vista Health. On July 22, 2014, Texarkana Behavioral Associates, L.C., filed a motion to dismiss, arguing in part that Brittany O had failed to effect service of process within the time required by Rule 4 of the Federal Rules of Civil Procedure. Brittany O filed a response on August 5, 2014, arguing that her amended complaint had rendered the motion to dismiss moot. Texarkana Behavioral Associates filed an amended motion to dismiss on August 20, 2014, along with a brief in which it argued that Brittany O's filing of an amended complaint did not render the motion to dismiss moot. On that same day, August 20, Brittany O served summons and the amended complaint on Texarkana Behavioral Associates. See Document #59.
Rule 4(m) of the Federal Rules of Civil Procedure provides that if a defendant is not served within 120 days after the complaint is filed, the court, on motion, must dismiss the action without prejudice against that defendant or order that service be made within a specified time. However, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
As Texarkana Behavioral Associates points out, the fact that Brittany O filed an amended complaint does not moot the motion to dismiss. Bryant v. Brooklyn Barbeque Corp., 130 F.R.D. 665, 667 (W.D. Mo. 1990), aff'd 932 F.2d 697 (8th Cir. 1991). Rather, the appropriate course is for the plaintiff to amend the original complaint after serving it on the original defendants. Id.
Here, Brittany O never moved for an extension of time within which to serve Texarkana Behavioral Associates, nor has she argued, much less established, that good cause exists for her failure to serve Texarkana Behavioral Associates with summons and complaint within 120 days of the commencement of the action. Texarkana Behavioral Associates' motion and amended motion to dismiss are therefore GRANTED. Documents #17 and #45. Brittany O's complaint against Texarkana Behavioral Associates, L.C., is hereby dismissed without prejudice.
II. MOTION TO DISMISS BY THE ARKANSAS DEPARTMENT OF EDUCATION
A. Whether Brittany O's complaint was timely under the IDEA.
In her amended complaint, Brittany O sues Tony Wood, in his official capacity as Commissioner of Education, and the Arkansas Department of Education ("the Education Department defendants") for violations of the Individuals with Disabilities Education Act. These defendants were dismissed from the administrative action by the hearing officer on September 12, 2013. Document #74-2 at 2. Brittany O. then prevailed in the underlying administrative action. The hearing officer's final decision and order is dated November 25, 2013. Document #25-1 at 31. The original complaint in this action was filed on March 5, 2014. Document #1. The Education Department defendants contend that Brittany O's IDEA claims are untimely.
The issue of what period of limitations applies to claims under the IDEA was first addressed by an Arkansas court in the case of Birmingham v. Omaha Sch. Dist., 17 F.Supp.2d 859 (W.D. Ark. 1998). In that case, the defendant challenged a decision by a hearing officer concluding that the school district had not violated the student's rights to a free appropriate public education. The defendant also sought attorneys' fees incurred during the due process hearing. At that time, the IDEA had no statute of limitations. When Congress has provided no statute of limitations for a federal cause of action, the practice of the federal courts is to adopt a statute of limitations from the state in which the forum court sits. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985), superceded by statute, as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 ...