                         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”), 20 U.S.C. § 1415 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, 2010 WL 151985 at *2 (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, 550 U.S. 544, 570 (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.”

Id.    at   563.   A   complaint   will    not    suffice,    however,    if   it

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

enhancement.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)

(citing Twombly, 550 U.S. at 557).

       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., 525 F.3d 8, 17 (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., 287 F.3d 192, 196 (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.”              28 U.S.C. § 1441(a);

see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (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, 2006 WL 1028959, 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, 223 F. Supp. 2d 60, 66 (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.                        28

U.S.C. § 1331.          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., 370 F.3d 1192, 1194

                                      -5-
(D.C. Cir. 2004) (quoting Bell v. Hood, 327 U.S. 678, 682-83

(1946)); see Leitner, 2009 WL 151985, 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.” 20

U.S.C. § 1415(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., 273 F.3d 671, 680 (6th Cir. 2001); see also Dorsey

v. City of Detroit, 858 F.2d 338, 341 (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,

2009 WL 4546618 (D.D.C. Dec. 2, 2009); Kirksey v. D.C. Pub. Sch.,

Civ. No. 09-1786, 2009 WL 4546629 (D.D.C. Dec. 2, 2009); Morgan

v. D.C. Pub. Sch., Civ. No. 09-1803, 2009 WL 4546624 (D.D.C. Dec.

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

4546615 (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, 2006 WL 2221703 (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.” 28 U.S.C. § 1441(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, 76 F.3d 1205, 1208 (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, 465 F. Supp. 2d 1, 3
(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, 371 U.S. 178, 182 (1962);

Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir.

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

148 F.3d 1080, 1083-85 (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,       214     F.R.D.       5,    8    (D.D.C.

2003)(citing Atchinson, 73 F.3d at 426).

       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, 174 F.3d 249,

253 (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, 2009 WL 4981537 (D.D.C. Dec. 14, 2009) (citing Myvett v.

Williams, 638 F. Supp. 2d 59, 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,

466 F. Supp. 2d 134, 135 n.1 (D.D.C. 2006); Bancoult v. McNamara,

214 F.R.D. 5, 13 (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




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