October 16, 2014
CENTER>MS. S., individually and as parent and legal guardian of BS, a minor Plaintiff,
REGIONAL SCHOOL UNIT 72 Defendant.
MS. S. individually and as parent and legal guardian of BS, a minor Plaintiff Represented by Richard L. O’Meara Stacey D. Neumann Murray Plumb & Murray
REGIONAL SCHOOL UNIT 72 Defendant Represented by Eric R. Herlan Drummond Woodsum
ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM
Jon D. Levy U.S. District Judge
The United States Magistrate Judge filed his Report and Recommended Decision (ECF No. 27) on July 31, 2014. The plaintiff, Ms. S., filed an Objection to the Report and Recommended Decision (ECF No. 28) on August 18, and the defendant, Regional School Unit 72 (“school district”), filed its Response on September 2 (ECF No. 29). The Report and Recommended Decision concluded and recommended that the motion to dismiss should be denied. ECF No. 27. For the reasons I will explain, I conclude that the motion to dismiss should be granted, but that the grant of the motion is without prejudice to the school district’s right to request attorney’s fees at the conclusion of this case as permitted by local rule.
I. FACTS AND PROCEDURAL BACKGROUND
This case involves a claim brought against the school district by Ms. S. under the Individuals with Disabilities in Education Act (“IDEA”), alleging the school district denied her child, BS, a free, appropriate public education. See ECF No. 1. In her IDEA action, Ms. S. raised certain claims that appear to be untimely, as measured against the applicable statute of limitations. ECF No. 10 at 6; ECF No. 12 at 5. She argued that her claims were within an exception to the statute of limitations because the school district had made “specific misrepresentations” that prevented her from filing a timely claim. ECF No. 10 at 6. After Ms. S. requested a due process hearing, the hearing officer found in part for the school district and in part for Ms. S. on the issue of whether BS had received a free, appropriate public education, and also ruled that the specific misrepresentation exception to the statute of limitations did not apply to Ms. S.’s remaining claims. ECF No. 1 at 16-17.
Ms. S. filed a complaint in this court challenging various portions of the hearing officer’s decision. ECF No. 1 at 2. In response, the school district filed a counterclaim for attorney’s fees against Ms. S.’s attorney and his law firm. ECF No. 8 at 15, 18. The counterclaim, brought pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(II) (2012), alleges that Ms. S.’s assertion of the specific misrepresentation exception to the statute of limitations was frivolous. Id. at 17. Ms. S. moved to dismiss the counterclaim, arguing that it was improperly filed under Federal Rule of Civil Procedure 13, and that it fails to state a claim and should be dismissed pursuant to Rule 12(b)(6). ECF No. 10 at 1.
A. Plaintiff’s Motion to Dismiss the Counterclaim as Improperly Filed Under Rule 13
At issue is the proper procedural vehicle for the school district to assert a claim for attorney’s fees against plaintiff’s attorneys pursuant to section 1415(i)(3)(B)(i). The school district contends that a counterclaim pursuant to Rule 13 is appropriate because section 1415(i)(3)(B)(i) of the IDEA provides that a prevailing party may seek fees against the attorney of a parent “[i]n any action or proceeding brought under this section. . . .” Id. (emphasis added). Ms. S. responds that Rule 13 only authorizes counterclaims against an “opposing party, ” and that her attorneys are not parties.She argues that if the school district wishes to seek fees against her attorneys it must do so at the close of this action “as part of the costs.” ECF No. 28 at 2.
The apparent conflict between Rule 13 and section 1415(i)(3)(B)(i) has not been addressed in this Circuit, but at least two federal district courts have addressed the issue and reached opposite conclusions. See Hawkins v. Berkeley Unified School Dist., 250 F.R.D. 459 (N.D. Cal. 2008) (concluding that Rule 13 barred a counterclaim for attorney’s fees brought solely against a non-party attorney under section 1415(i)(3)(B)(i)(II), reasoning that Rule 13 only contemplates counterclaims against existing parties to the action); Taylor P. v. Missouri Dep’t of Educ. and Secondary Educ., 2007 WL 2360061 (W.D. Mo. Aug. 14, 2007) (permitting a defendant school district to counterclaim for attorney’s fees against both the plaintiff parent and the parent’s non-party attorneys).
I conclude that Rule 13 does not permit the school district to prosecute a counterclaim against attorneys who are not parties to the action. Rule 13 unambiguously provides for counterclaims exclusively against an “opposing party.” Plaintiff’s attorneys are not parties to this action, see ECF No. 1 at 1-2, and the school district has made no attempt to join them. See Fed. R. Civ. P. 13(h). The plain language of Rule 13 bars the pursuit of a counterclaim against Ms. S.’s attorneys.
I am also not persuaded by the school district’s additional argument that section 1415(i)(3)(B)(i) has somehow superseded Rule 13’s requirements in the context of IDEA cases. While I agree with the school district that Ms. S.’s case constitutes an “action” for the purposes of section 1415(i)(3)(B)(i), the word “action” does not implicitly negate the requirements of Rule 13.
My conclusion that the school district may not maintain a counterclaim against the plaintiff’s attorneys who are not parties to the action does not mean that the school district is prevented from seeking attorney’s fees against them in this action. If the school district can establish both its prevailing party status and the frivolity of Ms. S.’s claims at the conclusion of this case, it may move for an assessment of legal fees against Ms. S.’s attorneys in accordance with Local Rule 54.2. See Doe v. Regional School Unit No. 21, 2013 WL 5232248 (D. Me. Sept. 16, 2013) (awarding attorney’s fees under section 1415(i)(3)(B)(i)(I) in a Local Rule 54.2 motion); Regional School Unit 51 v. Doe, 920 F.Supp.2d 168 (D. Me. 2013) (noting that requests for attorney’s fees and costs in an IDEA action should be made pursuant to Local Rules 54.2 and 54.3).
B. Plaintiff’s Motion to Dismiss Pursuant to Rule 12(b)(6)
Because I grant plaintiff’s motion to dismiss the school district’s counterclaim on the above grounds, I decline to reach the issue of whether the counterclaim should be dismissed for failure to state a claim under Rule 12(b)(6). The dismissal of the counterclaim is without prejudice to the school district’s right to seek attorney’s fees authorized by 20 U.S.C. § 1415(i)(3)(B)(i)(II) and Local Rule 54.2.
For the foregoing reasons, I decline to adopt the Magistrate Judge’s Recommended Decision. Therefore, the plaintiff’s motion to dismiss is GRANTED.