MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
I. INTRODUCTION
This cause is before the court on Defendants' Motions to Dismiss (Doc. #6, 16, 19).1
The Plaintiff filed a Complaint in this case on March 18, 2016 and an Amended Complaint April 20, 2016. In the original Complaint the Plaintiff brings claims for violations of the Americans with Disabilities Act, 42 U.S.C. § 12181 et. seq. ("ADA"), over which this court has original jurisdiction, and various state law claims. After the Motion to Dismiss was filed as to Count Ten, the Plaintiff filed an Amended Complaint. The Plaintiff brings claims for violation of the ADA (Counts One and Two); denial of participation (Count Three), negligence (Counts Four, Five, and Six), wantonness (Counts Seven, Eight, and Nine), and outrageous conduct (Count Ten). Count Ten, a claim for outrageous conduct, is the subject of all of the pending Motions to Dismiss.
For reasons to be discussed, the Motion to Dismiss Count Ten of the original Complaint is due to be DENIED as moot, and the Motion to Dismiss Count Ten of the Amended Complaint is due to be DENIED.
II. MOTION TO DISMISS STANDARD
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint need not contain Adetailed factual allegations," but instead the complaint must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555.
III. FACTS
The allegations of the Plaintiff's Amended Complaint, relevant to Count Ten of the Amended Complaint, are as follows:
Plaintiff, I.D., attended Wetumpka Preschool and Child Development Center, L.L.C. ("Wetumpka Preschool") from January 2013 until August 2014. Emmett Johnson ("Johnson")2 is the owner of Wetumpka Preschool. Deborah Davis ("Davis") is employed as the director of the preschool.
I.D. has Down Syndrome. Her condition limits her ability to care for herself, perform certain tasks, speak, think, and communicate. When I.D. began attending Wetumpka Preschool, Davis assured I.D.'s mother, Elizabeth Dunn ("Dunn"), that the school had a curriculum that provided Down Syndrome children with appropriate attention, therapy needs, and addressed all developmental concerns. When I.D. began attending Wetumpka Preschool she was able to crawl, and around January or February of 2014 she was able to walk. When I.D. began walking, Dunn told Wetumpka Preschool that I.D.'s physical therapist told her that I.D. would not need therapy if I.D. remained active. The Plaintiff alleges that the restraint of I.D. disrupted her development in walking and its associated psychological developments. (Doc. #13 at ¶22).
In August 2014, six to seven months after I.D. began walking, Dunn arrived at the Wetumpka Preschool and saw I.D. strapped into a high chair while the other children were playing. Dunn discovered it was the Wetumpka Preschool's policy to confine I.D. to a high chair at a minimum of four hours a day, but for potentially many more hours. The restraint for extended periods of time each day caused I.D. physical discomfort. (Doc. #13 at ¶ 82). Dunn also discovered that I.D. had been strapped into the high chair when she was crawling as well. I.D. was only removed from the high chair for a two-hour nap and to play outside, if the weather was nice. Dunn alleges in the Amended Complaint that when she confronted Johnson about the restraint policy, he told her that I.D. is a special needs child and that is how she "needs to be treated." (Doc. #13 at ¶ 21). The Plaintiff also alleges that Dunn is willing for I.D. to return to the preschool if there is an injunction against the school prohibiting discrimination. (Doc. #13 at ¶24). The Amended Complaint alleges that I.D. could see and understand that she was strapped in the high chair for hours while other children played (Doc. #13 at ¶23) and that she was caused emotional pain. (Doc. #13 at ¶ 82).
IV. DISCUSSION
Because an Amended Complaint was filed, taking the place of the pleadings, the first Motion to Dismiss, which is directed to the superseded original Complaint, is due to be DENIED as moot.
As to Count Ten of the Amended Complaint, the Defendants argue that even accepting the allegations of fact relevant to Count Ten as true, the facts do not rise to the threshold level of conduct for an outrageous conduct claim in Alabama.
Under Alabama law the tort of outrageous conduct requires the plaintiff to show that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. Little v. Robinson, 72 So.3d 1168, 1172 (Ala. 2011).
The Defendants seek to distinguish authorities cited by the Plaintiff, such as Vicky M. v. Northeastern Educational Intermediate Unit 19, 486 F.Supp.2d 437 (M.D. Pa.), reconsideration granted on other grounds by, 2007 WL 2844428 (M.D. Pa. 2007), which involved abuse of a disabled student in an education context, arguing that there is no allegation of physical abuse against I.D. The Defendants also cite to an allegation of the Amended Complaint which states that Dunn is willing to allow I.D. to remain a student at the Preschool as long as there is an injunction prohibiting the discrimination and argues that this allegation of the Amended Complaint undermines any allegation that there was emotional distress so severe that no reasonable person could be expected to endure it.
As the Defendants have noted, Alabama case law has made it clear that the tort of outrageous conduct is an extremely limited cause of action. Little, 72 So. 3d at 1173. Some cases have noted specific types of conduct which have been held to fall within the limits of outrageous conduct, but the Supreme Court of Alabama has specifically held that the tort is not limited to specific categories of conduct, but instead "is viable only when the conduct is 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 society." Id. The instant case, therefore, is not precluded by category from stating a claim for outrageous conduct. In fact, this court has previously denied a motion to dismiss as to an outrageous conduct claim brought on behalf of a disabled student who was improperly restrained in a chair as a behavioral restraint while at school. See D.D. v. Chilton Cnt'y Bd. of Educ., 655 F.Supp.2d 1191 (M.D. Ala. 2009). Therefore, the court will turn to the facts alleged as to each element of the tort. See Little, 72 So. 3d at 1172.
The Amended Complaint alleges that Dunn was assured that there was a curriculum suited for Down's syndrome children, but that when lengthy periods of restraint were used, Johnson told Dunn her she had a special needs child and restraint was how she "needs to be treated." (Doc. #13 at ¶¶ 14, 21). The Amended Complaint also alleges that the Defendants knew that I.D. needed to be active or would require physical therapy. (Doc. #13 at ¶ 22). This is sufficient to allege the first element of intentional or reckless conduct. Little, 72 So. 3d at 1172. The allegations of Johnson's comments, along with the allegation of the length of restraint time, and allegations that I.D. was caused physical discomfort, emotional pain, and developmental delays, sufficiently alleges the second element of conduct which is extreme and outrageous. Id. The mere fact that the Amended Complaint acknowledges that there were times when I.D. was not restrained does not undermine the outrageousness of the conduct given the allegation that the restraints imposed were counter to the advice of the physical therapist. Further, this court cannot agree with the Defendants, in light of the allegations of the Amended Complaint that restraint in the high chair for at least four hours a day caused I.D. physical discomfort (Doc. #13 at ¶ 82) and caused disruption of I.D.'s development in walking, that there is no allegation of physical abuse in this case. The Amended Complaint also alleges, regarding the final element of severe emotional distress, that due to the Defendants' actions, I.D. suffered disruption in her psychological development, that I.D. could see and understand that other children played for hours while she was strapped in the high chair, and that I.D. suffered emotional pain. (Doc. #13 at ¶¶ 23, 82). The allegation that I.D.'s mother would again send I.D. to the preschool if the challenged conduct were enjoined does not defeat the claim because, while perhaps relevant, her mother's child care decision does not necessarily undercut the level of distress which I.D., the Plaintiff, is alleged to have suffered.
Ultimately, it may be that upon development of facts, the Plaintiff will be unable to establish a claim for outrageous conduct. At this point in the proceedings, however, the court concludes that the Plaintiff has sufficiently alleged facts to withstand a Motion to Dismiss as to her outrageous conduct claim.
V. CONCLUSION
For reasons discussed, it is hereby ORDERED as follows:
1. The Motions to Dismiss (Doc. #6 and #19) for failure to state a claim are DENIED as moot.
2. The Motion to Dismiss Count Ten of the Amended Complaint (Doc. #16) is DENIED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
