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Serrano v. Serrano

United States District Court, E.D. Virginia, Norfolk Division

June 6, 2017

DANA M. SERRANO, et al., Plaintiffs,
RAFAEL SERRANO, et al., Defendants.

          OPINION & ORDER


         This matter is before the Court pursuant to two related motions. Defendant Rafael Serrano ("Rafael") filed a Motion to Dismiss the claims against him in Plaintiffs Dana M. Serrano's (''Dana's"), H.S.'s, D.S.'s, and S.S.'s (the latter three collectively, "Minor Plaintiffs'" or "Children's", and all four collectively, "Plaintiffs'") Second Amended Complaint ("Rafael's Motion to Dismiss"). Doc. 43. Defendants Tara W. Moore ("Moore"), Maria Hiring ("Eiring"), and the School Board for the City of Suffolk ("the School Board") (collectively, "School Defendants") also filed a Motion to Dismiss the claims against them in Plaintiffs' Second Amended Complaint ("School Defendants* Motion to Dismiss"). Doc. 45. For the reasons set forth herein, the Court GRANTS the School Defendants' Motion to Dismiss IN PART, granting it as to Count Nine (9).

         I. BACKGROUND

         A. Factual Allegations[1]

         This is a domestic relations case. Doc. 42 ("Second Am. Compl.") <|4. Plaintiff Dana and Defendant Rafael are the parents of the Minor Plaintiffs. Id. ¶¶ 4, 7. Plaintiff Dana has sole custody of the Children, while Defendant Rafael has some visitation rights. See Id. ¶ 7.

         On June 13, 2014, Defendant Rafael filed a complaint with Child Protective Services ("CPS") alleging that the Children were abused or neglected by Plaintiff Dana. Id. ¶ 22. After investigation, CPS determined that the allegations were unfounded. Id.

         From October 13, 2015 until February 8, 2016, Defendant Rafael periodically visited the Children at Northern Shores Elementary School. Id. ¶¶ 8, 30. These visits violated court orders regarding visitation rights and did not occur with Plaintiff Dana's permission. See Id. ¶ 8. During these visits, Defendant Rafael encouraged the Children to complain to school officials about Plaintiff Dana. Id. He also shared information about "court activities" with the Children and with school officials. Id. At one point, on May 12, 2015, Defendant Rafael attempted to kidnap the Children. Id. He further encouraged Defendant Eiring to call Plaintiff H.S. to her office to discuss possible abuse by Plaintiff Dana. Id. In addition, he discussed the alleged abuse with Defendant Moore. Id. ¶ 30. These school visits by Defendant Rafael were also approved by Defendant Moore and by the Defendant School Board despite knowledge that Defendant Rafael was not permitted to visit the Children at those times. Id., ¶¶ 13, 37.

         With Defendant Moore's authorization and without Plaintiff Dana's knowledge or approval, Defendant Eiring began counseling sessions with Plaintiff H.S. Id. ¶ 19. She physically restrained H.S. at some point in counseling. Id. ¶ 16. She eventually filed a CPS complaint alleging that Plaintiff Dana abused or neglected the Children. Id. ¶ 26. She filed this CPS complaint solely to assist Defendant Rafael in his custody proceedings. Id. She also filed notes and affidavits with Suffolk Juvenile Court stating that only Defendant Rafael and not Plaintiff Dana should receive information about the counseling sessions. Id. ¶ 13.

         After the counseling and CPS investigations, Plaintiffs are fearful, anxious, and nervous. Id. ¶ 37. They incurred "mental and emotional suffering, fright, anguish, shock, nervousness, and anxiety." Id. The Minor Plaintiffs "suffer intense feelings of fear, anger, confusion, and sadness." Id.

         B. Procedural History

         Plaintiffs filed a thirty-four (34) page Complaint containing seven (7) counts in the Circuit Court for the City of Suffolk on June 9, 2016. Doc. 1, Ex. 1. On July 22, 2016, Defendants removed the case to this Court under its federal question jurisdiction over Plaintiffs' claims under 42U.S.C. §§ 1983, 1985, 1988, and the First and Fourteenth Amendments to the Constitution. Id. at 2.

         After receiving an extension of time from the Court, Doc. 8, Plaintiffs filed the Amended Complaint on August 22, 2016, Doc. 9 ("Am. Compl."). The Amended Complaint spanned one hundred twenty-seven (127) pages, had one hundred seventy-four (174) pages of exhibits, and contained twelve (12) counts across seven hundred twenty-seven (727) numbered paragraphs and forty-six (46) unnumbered paragraphs. See id On January 23, 2017, the Court GRANTED a Motion to Strike Plaintiffs' Amended Complaint, Doc. 16, for violation of Rule 8(a)(2), which mooted several other pending motions. Docs. 40-41. The Court also directed Plaintiffs to file a Second Amended Complaint no more than thirteen (13) pages in length within ten (10) days of January 23, 2017. See id.

         Plaintiffs filed the Second Amended Complaint on February 1, 2017. See Second Am. Compl. Defendant Rafael filed his Motion to Dismiss on February 10, 2017. Doc. 43. The School Defendants filed their Motion to Dismiss on the same day. Doc. 45. Plaintiffs filed their opposition briefs on February 24, 2017. Docs. 47-48. Defendant Rafael filed his reply brief on March 2, 2017. Doc. 49. The School Defendants filed their reply on the same day. Doc. 50. Final Pretrial Conference was scheduled for May 4, 2017, and trial was scheduled for May 16, 2017, Doc. 38, although both dates are currently continued, Doc. 65.

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