ORDER RE MOTION TO REMAND

SHARON L. GLEASON, District Judge.

Before the Court is Appellant's Motion to Remand at Docket 6. The motion is fully briefed.1 Oral argument was not requested on the motion and was not necessary to the Court's determination. For the reasons set forth below, the motion will be denied.

BACKGROUND

M.G. experiences multiple disabilities, including autism, gastrointestinal disorders, cognitive impairments, and impending blindness.2 Pursuant to the Individuals with Disabilities Education Act ("IDEA"), in order for school districts to provide free appropriate public education ("FAPE") to disabled students, school districts are required to provide an Individualized Education Plan ("IEP") for each individual disabled student.3 M.G.'s IEP established he needed to attend a school for the blind in order to address his impending blindness. When the parties were unable to agree on how to implement the IEP, M.G.'s parents ("Parents") unilaterally enrolled M.G. at the Perkins School for the Blind in Watertown, Massachusetts.4

On January 7, 2017, Parents requested a due process hearing before a State of Alaska Department of Education and Early Development ("DEED") hearing officer, alleging that ASD failed to provide M.G. with education at a school for the blind, violating M.G.'s FAPE in violation of the IDEA. The hearing officer identified the issues before her as follows:

The hearing officer held that "ASD failed to implement student's IEP in a timely manner by not selecting a safe and appropriate residential placement."6 The hearing officer ordered ASD to pay for M.G. to attend Perkins from May 1, 2017 through February 17, 2018 and to reimburse Parents $1,388 per day for residential private school tuition, deposits, and travel expenses.7

On June 30, 2017, ASD initiated this administrative appeal in Anchorage Superior Court seeking reversal of the DEED hearing officer's decision.8 The case was assigned to Judge Jack Smith. On July 7, 2017, Parents timely exercised their right to peremptorily challenge Judge Smith pursuant to Civil Rule 42(c). The state court promptly reassigned the case to another superior court judge.9 Two days later, on July 12, 2017, Parents removed the case to this Court, asserting federal question jurisdiction under 28 U.S.C. § 1331.10 Parents' Notice of Removal states that the "civil action in which the causes of action alleged in the State Court action Complaint arise under the laws of the United States, primarily the IDEA."11 ASD now moves to remand the case back to the state court. It maintains that no federal question jurisdiction exists; and if there is such jurisdiction, Parents waived their right to assert it by exercising the peremptory disqualification in state court.

DISCUSSION

I. Federal Question Jurisdiction

ASD alleges that federal question jurisdiction does not exist because the case involves "a state hearing officer's decision interpreting state law and a local school district's efforts to provide a FAPE under state law" and therefore, does not present a federal question.12 ASD also argues its appeal presents a question of Alaska law that "is best left to Alaska courts."13 Parents respond that the appeal is removable because it is an IDEA case and "federal courts share original jurisdiction over IDEA cases with state courts."14

Federal question jurisdiction that will support removal "is governed by the `well-Pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."15 "[T]he mere reference of a federal statute in a pleading will not convert a state law claim into a federal cause of action if the federal statute is not a necessary element of the state law claim and no preemption exists."16 "[T]he federal law must be a direct and essential element of the plaintiff's cause of action"17 and must be a substantial one, "indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum."18

Here, ASD's Statement of Points on Appeal asserts two violations of the IDEA. ASD's second point on appeal is as follows:

ASD's ninth point on appeal is as follows:

When addressing the two points listed above, a court will be required to consider the IDEA. Clearly, federal law is a direct and essential element to these claims on appeal. Indeed, ASD specifically argued in its Motion for Expedited Consideration that Parents violated the IDEA's "stay put" provision and cited only to federal law as it relates to the IDEA.21

ASD asserts that this Court should follow the reasoning in Bay Shore Union Free School District v. Kain.22 In that case, the Second Circuit held that the district court did not have jurisdiction to hear a case alleging a school district did not provide FAPE to a disabled student. The Second Circuit observed that the IDEA establishes a "basic floor" that states must comply with, but that states have the ability to "enact their own laws and regulations to guarantee a higher level of entitlement to disabled students."23 In Bay Shore, the parties agreed that the services in dispute were not required by the IDEA. The dispute focused on whether state law required the student receive the disputed services. The Second Circuit held that the district court did not have jurisdiction to hear the case because the case "turn[ed] entirely on a state-law issue."24

In this case, ASD argues that Alaska regulations "specifically address[ ] this type of dispute. . . ."25 However, ASD cites to regulations that are procedural in nature and do not provide a "higher level of entitlement" to disabled students than the IDEA.26 Moreover, Alaska's regulations specifically state that the state's requirements must conform to statutes found within the IDEA.27 Unlike the issue in Bay Shore, this case does not turn entirely on a state law issue; rather, at least with regard to the two points on appeal cited above, it turns on the IDEA.

ASD also cites to Evergreen School District v. N.F.28 In that case, the district court remanded the case to state court, as it found that the plaintiff's complaint "did not state a claim under the IDEA and [did] not make any reference to the constitution or the federal act."29 The court concluded that the plaintiff intended to have the case heard in state court and not federal court by purposefully alleging only state law claims.30 But in this case, ASD has alleged federal claims and cited to the IDEA in its Points on Appeal. Because the IDEA is a direct an essential element of ASD's case, this Court has federal question jurisdiction.

II. Waiver of Removal

ASD also alleges that Parents waived their right to removal because the peremptory challenge Parents filed in state court is a "substantive, offensive action in state court inconsistent with [the] right to remove. . . ."31 Parents assert that the action they took in state court "to bump a state superior court judge, which they were required to do under state court rules within five days plus weekends of the judicial assignment," does not constitute a waiver of their right to remove.32

"A waiver of the right of removal must be clear and unequivocal."33 A party may waive the right to remove a case to federal court by "tak[ing] actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum."34 However, "the right of removal is not lost by action in state court short of proceeding to an adjudication on the merits."35 When "a party takes necessary defensive action to avoid a judgment being entered automatically against him, such action does not manifest an intent to litigate in state court, and accordingly, does not waive the right to remove."36 Thus, filing an answer in state court does not constitute a waiver of the right to remove.37

In this case, Parents filed a one-page notice in state court, exercising their right to peremptorily challenge the assigned judge pursuant to Alaska Rule of Civil Procedure 42(c).38 The Alaska Court of Appeals has recognized that the right to file a peremptory challenge is a "substantive right," although it has also recognized that the right is not particularly expansive.39

Parties in Alaska state court are required to exercise their right to a peremptory challenge within five days of notice of the assigned judge.40 And yet, a party has a right to remove a case to federal court within 30 days after being served with a complaint.41 If the Court were to find that a party waives his or her right to removal by filing a peremptory challenge within the requisite five days, it would preclude that party from having the full 30 days to decide whether to seek removal of the case to federal court.

The Court finds that by filing a peremptory challenge notice in state court, a litigant is not demonstrating a clear and unequivocal intention to adjudicate a claim on the merits in that court. Accordingly, the Court finds that Parents did not waive their right to removal when they filed a Rule 42(c) Notice of Change of Judge in the state court.42

CONCLUSION

For the reasons set forth above, IT IS ORDERED that Appellees' Motion to Remand at Docket 6 is DENIED.