                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2617
                        ___________________________

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

                       lllllllllllllllllllll 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

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: February 10, 2016
                              Filed: July 7, 2016
                                ____________

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

      1
       We have jurisdiction under 28 U.S.C. § 1291.
      2
        As Moore’s appeal arises from a dismissal under Fed. R. Civ. P. 12(b)(6), we
recite the facts as Moore pled in state court, accepting as true all factual allegations
in the petition. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Kruger v. Nebraska,
820 F.3d 295, 299 n.4 (8th Cir. 2016).


                                          -2-
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.


      3
       Moore refers to D.S.’s IEP as her “Individual Education Plan.”


                                          -3-
      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

      4
        The individual defendants later consented to removal and joined the school
district and Southwest’s motion to dismiss.


                                         -4-
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 (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. “[T]he question is, does a state-law claim necessarily



                                          -5-
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 (2005); accord Franchise Tax Bd. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 13 (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 not expressly invoke relief under the IDEA,
which guarantees students with disabilities access to a free, appropriate education and
“ensure[s] that the rights of children with disabilities and parents of such children are
protected.” 20 U.S.C. § 1400(d)(1)(A), (B); see also Winkelman ex rel. Winkelman
v. Parma City Sch. Dist., 550 U.S. 516, 523-24 (2007) (discussing the IDEA’s
purposes). Although Moore’s petition raises state law claims, the defendants contend
Moore’s premises liability and negligent supervision claims are steeped in alleged
violations of the IDEA and the petition’s allegations raise substantial questions of
federal law. See M. Nahas & Co., 930 F.2d at 612 (explaining a plaintiff cannot
mistakenly or fraudulently avoid federal jurisdiction by “concealing the federal
question that would necessarily have appeared if the complaint had been well
pleaded”).

       While overstated, the defendants’ reading of Moore’s petition is not completely
without support. Moore makes references to D.S.’s IEP—that D.S.’s IEP failed to set
forth goals on how to improve D.S.’s attendance, and that the defendants failed to
address in D.S.’s IEP her tendency to wander, vulnerability to suggestion, and sexual
abuse. But these few references do not convince us that the propriety of D.S.’s IEP



                                          -6-
is the “central dispute of this litigation,” as the defendants suggest, or that any matter
relating to D.S.’s disability and education raises issues concerning the “educational
placement” of D.S., thereby implicating the IDEA.

       Considering these IEP references in context—appearing in a small number of
paragraphs in the twenty-page petition—Moore’s claims “implicate” the IDEA only
in the sense that D.S., as a special education student, had an IEP the defendants were
required to administer. See 28 U.S.C. § 1414(d). According to Moore, D.S.’s IEP
“was mentioned in the pleadings solely to show notice to the [school district] of the
conditions that put D.S. at risk from other students,” including D.S.’s “special
vulnerabilities.” The gravamen of the petition is a state law action for damages
seeking redress for the brutal injuries D.S. suffered as the result of repeated sexual
assault and rape while under Southwest’s supervision. The petition did not request
any change or amendment to D.S.’s IEP or educational placement, and the state law
claims do not rely on the IDEA or the rights it creates and protects. See, e.g., MCI
Telecomms. Corp., 981 F.2d at 387; M.P., 439 F.3d at 868 (explaining the “IEP
process” involves “individual identification, evaluation, educational placement, and
free, appropriate education (FAPE) decisions”); Evergreen Sch. Dist. v. N.F., 393 F.
Supp. 2d 1070, 1074 (W.D. Wash. 2005). Rather, the petition’s theories of liability
arise out of Missouri statutory and common law, and the disposition of claims for
premises liability and negligent supervision is not “‘depend[ent] on resolution of a
substantial question of federal law.’” Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d
905, 906 (8th Cir. 2005) (quoting Franchise Tax Bd., 463 U.S. at 28).

       The defendants isolate certain phrases in Moore’s petition, arguing they
“plainly seek relief that is available under the IDEA.” Specifically, the
defendants—as did the district court—point to the request for damages due to D.S.’s
suffering of “‘emotional distress, embarrassment, loss of self-esteem, disgrace,
humiliation, loss of enjoyment of life, and other economic damages including but not



                                           -7-
limited to expenses for past and future medical and psychological treatment, therapy
and counseling.’” (Emphasis added by defendants). Moore did not request counseling
from Southwest or the school district or otherwise through her IEP. This paragraph
of the petition merely explains how an overall award of damages, as “any person who
has been subjected to rape might demand,” will assist in D.S.’s recovery. Cf.
Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 917-18 (6th Cir. 2000) (stating
where a special education student’s injuries were “wholly in the past, . . . money
damages”—not remedies available under the IDEA—were “the only remedy that
[could] make him whole”). The IDEA does not provide general compensatory or
punitive damages. See Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir.
2000). Notwithstanding defendants’ suggestions to the contrary, this is not a case
where Moore has “merely . . . tack[ed] on a request for money damages” to evade the
requirements of bringing a claim under the IDEA, see Polera v. Bd. of Educ. of the
Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002), or where “the
genesis and the manifestations of the problem are educational,” cf. Charlie F. by Neil
F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir. 1996). Even if
the relief Moore requested were available under both state law and the IDEA, the
well-pled complaint rule protects Moore’s “right to choose a state law cause of
action.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943 (6th Cir. 1994).

        The defendants also propose the IDEA’s exhaustion requirement, 20 U.S.C.
§ 1415(l), should apply to Moore’s state law claims, and she must pursue her
grievances through the IDEA’s administrative procedures before she can continue this
action. Under § 1415(l), if relief sought under the “Constitution, the Americans with
Disabilities Act of 1990 . . ., title V of the Rehabilitation Act of 1973 . . . , or other
Federal laws protecting the rights of children with disabilities,” a claimant is required
to exhaust administrative remedies under the IDEA before pursuing that relief. See,
e.g., J.B., 721 F.3d at 591-92 (requiring a claimant to exhaust administrative remedies
under the IDEA before pursuing violations of the Americans with Disabilities Act and



                                           -8-
section 504 of the Rehabilitation Act). Moore did not allege a violation of the
Constitution, the IDEA, one of the three statutes enumerated in § 1415(l), or any other
federal statute. Section 1415(l) does not encompass common law or state law claims
in its exhaustion realm. “No authority holds that Congress meant to funnel isolated
incidents of common law torts into the IDEA exhaustion regime,” Muskrat v. Deer
Creek Pub. Sch., 715 F.3d 775, 785 (10th Cir. 2013), and we carefully avoid
disrupting the IDEA’s model of “cooperative federalism,” Schaffer ex rel. Schaffer
v. Weast, 546 U.S. 49, 52 (2005) (quotation omitted). We agree with the Ninth
Circuit that “[n]on–IDEA claims that do not seek relief available under the IDEA are
not subject to the exhaustion requirement, even if they allege injuries that could
conceivably have been redressed by the IDEA.” Payne v. Peninsula Sch. Dist., 653
F.3d 863, 871 (9th Cir. 2011) (en banc), overruled on other grounds by Albino v.
Baca, 747 F.3d 1162, 1166, 1171 (9th Cir. 2014) (en banc).5

      Moore has requested an award of attorney fees, 28 U.S.C. § 1447(c), because
the defendants “lacked an objectively reasonable basis for seeking removal.” See
Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005) (holding “absent unusual
circumstances, attorney’s fees should not be awarded when the removing party has an
objectively reasonable basis for removal”). The petition’s few references to the
implementation of D.S.’s IEP made for a colorable argument that the case presented
a federal question under the IDEA. We conclude the defendants were not without a



      5
        The United States Supreme Court recently granted certiorari to review a Sixth
Circuit decision involving similar issues under the IDEA. See Fry v. Napoleon Cmty.
Sch., 788 F.3d 622 (6th Cir. 2015), cert. granted, ___ U.S. ___, ___ S. Ct.___, 84
U.S.L.W. 3226 (2016). The question presented in Fry is whether § 1415(l) requires
exhaustion of state administrative remedies before pursuing a claim seeking damages
under the Americans with Disabilities Act and Rehabilitation Act. See id. at 624-25.
Because Moore’s claims here are based solely on state law, we are satisfied any future
decision in Fry will not change the outcome of this case.


                                         -9-
reasonable basis to remove the action, and we deny Moore’s request for attorney fees.
See Paul v. Kaiser Found. Health Plan of Ohio, 701 F.3d 514, 523 (6th Cir. 2012).

III.   CONCLUSION
       The defendants have failed to satisfy their burden of establishing federal
jurisdiction. See Cent. Iowa Power, 561 F.3d at 912 (favoring remand). We reverse
the district court’s judgment with instructions to remand this case to the Missouri state
court from which the action was removed. See 28 U.S.C. § 1447(c); see also Wallace
v. ConAgra Foods, Inc., 747 F.3d 1025, 1033 (8th Cir. 2014).
                         ______________________________




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