SUE L. ROBINSON, Senior District Judge.
At Wilmington this
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3. The IDEA establishes several procedural safeguards for the parents of a disabled child, including the right to present a complaint "with respect to any matter relating to . . . the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6). If the school district does not resolve the complaint to the parents' satisfaction, the parents have the right to request an impartial due process hearing held before a panel (the "hearing panel") appointed by the Secretary of the DDOE. 20 U.S.C. § 1415(f)(1); 14 Del. C. §§ 3135. Absent two exceptions—neither of which plaintiff invokes here—the parents must request a hearing "within 2 years of the date the parent[s] . . . knew or should have known about the alleged action that forms the basis of the complaint."
4. B.B. attended Red Clay Consolidated School District ("Red Clay") at the West End Head Start preschool during the 2012-2013 school year. (D.I. at ¶ 17) Red Clay identified B.B. as a student eligible for and in need of special education services. (Id. at ¶ 19) On November 30, 2012, a team with Red Clay developed an IEP for B.B. that included speech and language therapy six times per month, for 30 minutes per session. (Id.) In August 2013, B.B. entered the kindergarten class at DCPA, a public charter school. (Id. at ¶¶ 10, 20, 23) By November 30, 2013, DCPA had not evaluated B.B. for special education services, provided any special education services to him, or ensured that the IEP team conducted its annual review of the IEP as required. (Id. at ¶ 20)
5. Three months later, on February 20, 2014, B.B.'s mother, Catherine B., sent a letter to the DCPA noting that the IEP was over a year old and requesting that DCPA evaluate B.B. (Id. at ¶ 22) The next day, February 21, 2013, parents' counsel, on behalf of B.B., filed a due process complaint (the "first complaint") alleging that DCPA had denied B.B. a FAPE by failing to update the IEP and failing to provide B.B. with special education services for the 2013-2014 school year. (Id. at ¶ 23) The first complaint requested that DCPA fund an outside evaluation of B.B. to determine his academic levels and speech and language therapy needs. (Id.) On February 24, 2014, DCPA sent parents, among other things, a copy of the Delaware Procedural Safeguards Notice, which contains information regarding the statute of limitations for filing a due process complaint.
6. In August 2014, parents filed a second due process complaint (the "second complaint") against the DCPA. (Id. at ¶ 27) No new IDEA violation was alleged. (D.I. 4-1 at p. 10 ¶ 6) The second complaint asked DCPA to fund an independent educational evaluation of B.B. (D.I. 1 at ¶ 27) In September 2014, parents withdrew the second complaint, because B.B. had transferred to a new school. (Id.)
7. In December 2015, the Red Clay school board voted to revoke DCPA's charter. (Id. at ¶ 28) Upon parents' information and belief, DCPA has ceased operations, but still maintains a legal existence. (Id. at ¶ 10) On April 1, 2016, parents filed a third due process complaint (the "third complaint"), which named as respondents both DCPA and DDOE. (Id. at ¶ 29) The educational injuries alleged in the third complaint are the same as those alleged in the first complaint and second complaint. (D.I. 4-1 at 10 ¶ 6) Nevertheless, the third complaint alleges that, since DCPA had lost is charter, DDOE had become legally responsible for providing a FAPE to B.B. (D.I. 1 at ¶ 3) On June 16, 2016, the hearing panel issued a written opinion and order dismissing the third complaint based on the IDEA's two-year statute of limitations and the doctrine of latches. (Id. at ¶ 4; D.I. 4-1)
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9. To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court's review is limited to the allegations in the complaint, exhibits attached to the complaint, documents incorporated by reference, items subject to judicial notice, and matters of the public record. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); D.M. ex rel. Ray v. Phila. Housing Auth., 613 Fed. App'x 187, 189 (3d Cir. 2015); El-Hewie v. Bergen Cty., 348 Fed. App'x 790, 794 (3d Cir. 2009) (explaining that the "public record" includes administrative decisions). The allegations in the complaint must be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
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11. Plaintiff does not dispute that the injuries alleged in the third complaint are the same as the injuries alleged in his other complaints or raised in the February 2014 letter. Instead, plaintiff argues that dismissal is not warranted, because a Rule 12(b)(6) motion to dismiss is an improper procedural vehicle for considering a statute of limitations defense. (D.I. 6 at ¶¶ 31-38) In particular, plaintiff argues that this defense improperly relies on matters extraneous to the pleadings. (Id.) The court disagrees. The Third Circuit has made clear that a court may grant a Rule 12(b)(6) motion to dismiss based on a statute of limitations defense if it is apparent on the face of the complaint that the action is time-barred. Singer v. Bureau of Prof'l & Occupational Affairs, 523 Fed. App'x 185, 186 (3d Cir. 2013). Moreover, "[a]s with motions to dismiss generally, in considering a statute of limitations defense, [the court] may consider not only the allegations in the complaint but also exhibits attached to the complaint and matters of public record." Gould v. Borough, 615 Fed. App'x 112, 115 (3d. Cir. 2015). Here, the complaint itself alleges that parents complained to the DCPA in February 2014 of the same injuries that form the basis of the third complaint. Accordingly, it is apparent from the face of the complaint that it is untimely, and the court may properly dismiss the complaint at this stage of the proceedings based on a statute of limitations defense.
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