JOSEPH N. LAPLANTE, District Judge.
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, 626 F.Supp.2d 195 (D.N.H.2009).
This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (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
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, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Id. By the same token, the showing does not require "detailed factual allegations," id., simply "enough factual matter (taken as true) to suggest" the plaintiff's right to relief, id. at 556, 127 S.Ct. 1955.
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 potential dismissal and an opportunity to respond to it. See, e.g., Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 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).
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., 544 F.3d 320, 324 (1st Cir.2008). Franchi's daughter, CF, 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 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.
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:
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 with being forced to leave her friends and school and complete her high school education at a different institution."
NHS has moved to dismiss all of Franchi's federal law claims—those alleging violations
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.
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 accommodation by any person who owns, leases ... or operates [it]." 42 U.S.C. § 12182(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 in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(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." 42 U.S.C. § 3604(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." 42 U.S.C. § 12102(1) (formatting and parenthetical
As Franchi points out, the ADA was recently amended to, 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), 122 Stat. 3553, 3554 (codified at 42 U.S.C. § 12102(2)(A) (2005 & supp.2008)).
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. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (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 ADA], 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 42 U.S.C. § 12102(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." Id. 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 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
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 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., 245 F.3d 916, 927 (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., 2003 DNH 158, 10, 2003 WL 22143245 (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 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., 283 F.3d 11, 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. Id. While, under Title III, 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 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 as, or designed or intended for occupancy as, a residence by one or more families." 42 U.S.C. § 3602(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.'" 42 U.S.C. § 3602(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 FHA. See United States v. Mass. Indus. Fin. Agency, 910 F.Supp. 21, 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 it); United States v. Hughes Mem'l Home, 396 F.Supp. 544, 548-49 (W.D.Va.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. 24 C.F.R. § 100.20 (2009) (formatting omitted). "Familial status," of course, is another prohibited basis of discrimination under the FHA, 42 U.S.C. § 3604(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. Indeed, § 100.20 contains the same definition of "dwelling" as that contained in the FHA itself.
3. Title IX
NHS is correct that Franchi has not stated a claim under Title IX, which provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," with a number of exceptions not relevant here. 20 U.S.C. § 1681(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., 276 F.3d 52, 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 IX, 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., 101 F.3d 155, 171 (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, 538 F.3d 32, 41 (1st Cir.2008) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)) (bracketing omitted). Franchi alleges no 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.
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, 135 F.3d 21, 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
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., 272 F.3d 13, 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., 103 F.3d 186, 192 (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, 957 F.2d 913, 916 (1st Cir.1992).
In Schneider, a jury awarded a plaintiff $150,000 in compensatory and enhanced damages on claims for violation of Title IX and breach of fiduciary duty against her former college. 144 N.H. at 461, 744 A.2d 101. 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, 744 A.2d 101. 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,
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. 626 F.Supp.2d at 219 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, 139 N.H. at 717, 662 A.2d 272— 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[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., 152 N.H. 407, 415, 879 A.2d 1124 (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 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, 144 N.H. at 462, 744 A.2d 101, the balance of the opinion makes clear that "special" does not mean simply "unusual," but "unique" or at least "rarely seen," id. at 463, 744 A.2d 101. 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., 151 N.H. 409, 414, 858 A.2d 536 (2004) (internal quotation marks omitted), would become fiduciary, triggering an elevated duty to "behave in a selfless fashion," Lash, 124 N.H. at 438, 474 A.2d 980 (internal quotation marks omitted), as long as the party owed the duty could claim some "special trust."
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 so. See Evans v. Taco Bell Corp., 2005 DNH 132, 33-35, 2005 WL 2333841 (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., No. 55003943, 2009 WL 865679, at *12 (Conn.Super.Ct. Mar. 10, 2009) (distinguishing Schneider in rejecting fiduciary duty claim against a university arising out of a student's suicide; holding that "a dependent relationship" does not suffice to establish a fiduciary duty); Gonzalez v. Univ. Sys. of N.H., No. 451217, 2005 WL 530806, at *20 (Conn.Super.Ct. Jan. 28, 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[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).
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
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." N.H.Rev. Stat. Ann. § 358-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.
NHS's first argument is based on Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 791 A.2d 990 (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." Id. at 451-52, 791 A.2d 990. 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, N.H.Rev.Stat. Ann. § 358-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 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, 151 N.H. 450, 452, 861 A.2d 763 (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, 141 N.H. 382, 390, 687 A.2d 979 (1996) (quoting Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 396 N.E.2d 149, 153 (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, 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.
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." 626 F.Supp.2d at 226 (quoting Corso v. Merrill, 119 N.H. 647, 656, 406 A.2d 300 (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 [parent] either sees the accident victim at a later time, or if the [parent] is later told of the seriousness of the accident." Corso, 119 N.H. at 657, 406 A.2d 300. 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, 406 A.2d 300. She has failed to state a claim on her own behalf—
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."'" Brodeur, 626 F.Supp.2d at 224 (quoting Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723, 728-29, 972 A.2d 1050 (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," 158 N.H. at 729, 972 A.2d 1050. 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." Id. That case is controlling here, where Franchi alleges, similarly, that NHS wrongfully discharged CF, 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.
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.
This court has observed that "scattershot pleading is disfavored and counterproductive." Marier v. Town of Allenstown, 2003 DNH 172, 30, 2003 WL 22303075; see also, e.g., Mueller Co. v. U.S. Pipe & Foundry Co., 2003 DNH 168,