Dahlman

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4:25-CV-34-BO-KS

DANIEL DAHLMAN and JULIANNE )

DAHLMAN, )

)

Plaintiffs, )

)

V. ) ORDER

)

WASHINGTON MONTESSORI, INC., )

d/b/a WASHINGTON MONTESSORI )

PUBLIC CHARTER SCHOOL, and JAMIE)

MIDGETTE, individually and in his official )

capacity as Chairman of the Board of )

Trustees, )

)

Defendants. )

This cause comes before the Court on defendant Washington Montessori, Inc.’s motions

to dismiss plaintiffs’ complaint and amended complaint pursuant to Rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure. Plaintiffs have responded, the moving defendant has

replied, and a hearing was held before the undersigned on September 5, 2025, at Raleigh, North

Carolina. In this posture, the motions are ripe for disposition. For the reasons that follow, the

motion to dismiss the original complaint is denied as moot and the motion to dismiss the amended

complaint is granted in part and denied in part.

BACKGROUND

Plaintiffs instituted this action by filing a complaint on February 12, 2025. [DE 1].

Plaintiffs amended their complaint on May 14, 2025. [DE 15]. In their amended complaint,

plaintiffs allege claims arising from defendants’ alleged denial of a free and appropriate public

education (FAPE) to their daughter, KD, and retaliation against plaintiffs Plaintiffs bring claims

only on behalf of themselves, not on behalf of their daughter. KD was admitted via lottery to attend

Washington Montessori Public Charter School (Washington Montessori), located in Washington,

North Carolina. /d. Jf 3; 14. KD has been diagnosed with ADHD, unspecified depressive disorder,

unspecified anxiety disorder, and autism spectrum disorder and her parents have been actively

engaged in her education since she began at Washington Montessori in kindergarten. Jd. 11; 15;

16. Plaintiffs attended board meetings, community meetings, field trips, and events and plaintiff

Julianne DahIman volunteered regularly in the classroom. Jd. J§ 17-19.

Beginning in 2021, plaintiffs began to have concerns arising from perceived deficiencies

in Washington Montessori’s programming for students with disabilities, nepotism, and a

preference for hiring uncertified teachers and administrators. Jd. J] 25-26. Plaintiffs attended and

spoke at board meetings to raise these issues, but their comments and concerns were omitted from

the Board’s meeting minutes. /d. Id. Jj 20-22. Plaintiffs questioned the use of the label “HQ” next

to certain staff members’ names on the school’s website, when those individuals lacked proper

North Carolina Department of Public Instruction credentials to be designated as “highly qualified.”

Id. §§ 27-32. Plaintiffs also questioned using a company owned by Washington Montessori’s

Executive Director, defendant Jamie Midgette, to lease instruments and instructional materials to

the school’s students. /d. § 40. Plaintiff Daniel Dahlman also made Freedom of Information Act

(FOIA) requests for the school’s vendor list but did not receive a response. /d. J 34, 39.

In January 2022, the Board implemented a new policy which permits the administration to

ban any parent from campus who directly or indirectly threatens the schoo! community. /d. § 35-

36. On August 17, 2022, plaintiffs were banned from campus. /d. J 96. The letter informing

plaintiffs of the ban accused them of engaging in “a campaign to discredit our school, the board,

and its leadership,” “threaten[ing] board members and administration” and that plaintiffs’

“communications ha[d] crossed the line from concerned parents to disrespectful, aggressive, and

uncivil.” Jd. Jf 97-100. Plaintiffs were instructed not to contact the school, except where it directly

concerned KD’s education, and were prohibited them from school property except to drop off and

pick up KD. /d. J§ 101-102.

In June 2022,! a recording of a November 2021 Board of Trustees meeting was re-posted

ona Facebook group of Washington Montessori parents. /d. § 42. The adult son of a Board member

commented that he was tired of seeing the school being “bashed” on social media, citing to conduct

by defendant Midgette and others after his soccer coach had abruptly quit. Ms. Dahlman

commented that the soccer coach had not quit, but rather had been fired when it was determined

that he was a sex offender and had been hired without a background check being conducted by the

school. In response to comments made in the Facebook group, plaintiffs contacted the Washington

Police Department about hiring an off-duty officer to attend board meetings. /d. {J 45-52.

In November 2022, plaintiffs received Washington Montessori’s Board Policy, which

included prohibitions on disruptive actions which interfere or threaten to interfere with classroom

operations, board meetings, school events, the car line or parking lot, or other areas of the school,

as well as defamatory, offensive, or derogatory comments on social media sites regarding the

school or its students, staff, or board. Jd. §§ 121-124. The Board Policy provided that failure to

follow the policy provisions regarding campus and social media behavior would result in, among

other things, banning a parent for a period of time or contacting authorities. /d. § 125. Plaintiffs

allege that these policy provisions were retaliatory to plaintiffs and KD. Jd. ¥ 122.

On January 12, 2023, plaintiffs filed a complaint with the Office of Civil Rights. /d. J] 130.

In July 2023, plaintiffs were notified by the Office of Civil Rights that the investigation had been

' The complaint identifies this incident as occurring in June 2023, but the Court presumes this

incident took place in June 2022 based on the remaining allegations.

dropped, and plaintiffs allege that the notification letter included several new, allegedly false

claims made against plaintiffs by Midgette. /d. ff 154-55. The January 2023 complaint was closed

and plaintiffs were informed they could file a new claim. /d. J 157.

In February 2023, plaintiffs were notified by Washington Montessori about a drawing by

KD depicting a person who had hanged themselves and was dripping blood. Plaintiffs were

instructed that if KD did not see a mental health provider within three days the school would

contact a mobile crisis unit to assess KD. /d. 131-132. Plaintiffs allege that KD’s mental health

deterioration is a result of their being banned from school property. /d. § 133. In April 2023,

Washington Montessori sent plaintiffs KD’s student records in response to plaintiffs’ request. This

included a fifty-page handwritten journal containing teachers’ observations of KD. The journal

included a note describing KD having vomited in the hallway, that KD was made to clean it up,

and that KD was not permitted to use the phone to notify her parents if she vomits. Plaintiffs allege

that Washington Montessori withheld this information from plaintiffs which resulted in inadequate

support and accommodation at school for KD’s anxiety. /d. Ff 138-145.

In August and September 2023, plaintiffs notified Washington Montessori that KD’s

anxiety was escalating, she was refusing to go to school, and she was displaying aggressive

behavior at home. Plaintiffs attributed this increase in KD’s anxiety to her inability to attend

extracurricular activities and have her parents with her at school events. In September 2023,

plaintiff Daniel Dahlman emailed the Board of Trustees to inquire whether plaintiffs remained

banned from campus, and was informed that the ban remained in place. /d. J] 158-165. Plaintiffs

allege that Midgette made the decision to continue the ban unilaterally. /d. {§ 166.

On October 10, 2023, plaintiff Julianne Dahlman received a letter from Washington

Montessori informing her that on October 4, 2023, she was speeding and almost hit students in the

car line at Washington Montessori. Ms. DahIman was informed that her driving privileges on

campus were revoked. /d. § 173. Two hours after receiving the letter, Ms. DahIrnan received a

phone call from Washington Montessori’s social worker informing her that KD had cut herself

while in the girls’ restroom. Mr. Dahlman rushed to school to pick up KD, where KD’s teacher

informed him that she was unaware of the cutting incident. Mr. Dahlman had started to drive away

with KD when he noticed blood over the wrist areas of KD’s sweatshirt; Mr, Dahlman circled back

through the car line to inform a Sheriff's deputy who was at the school. /d. 174-178. Mr.

Dahlman was interviewed by the Sheriff's Deputy about the incident, and shortly after this

incident, the Sheriff's deputy became a member of Washington Montessori’s Board of Trustees.

Id. ¥§ 178-179.

On October 11, 2023, Ms. DahIman responded to her driving ban via email, noting she had

dashcam footage exonerating her. On October 17, 2023, Mr. Dahlman sent a FOIA request for

surveillance footage of Ms. Dahlman’s alleged October 4 car line incident, but was told that video

footage is not a part of public records requests. /d. ff 180-182. On October 21, 2023, Mr. Dahlman

received a letter banning him from campus due to the October 10, 2023, car line incident. Mr.

DahIman responded to the driving letter ban on October 23, 2023, attaching dashcam footage and

requesting an official grievance against Midgette. /d. {J 183-184.

In early November 2023, plaintiffs dropped KD at the end of the Washington Montessori

driveway and requested that KD be escorted to the school. Washington Montessori staff failed or

refused! to escort KD, which plaintiffs allege was a violation of KD’s student support plan. Id. □□

191-192. On January 2, 2024, Washington Montessori responded to plaintiffs’ Family Educational

Rights and Privacy Act (FERPA) and FOIA requests and requested that plaintiffs pay $2,000 as a

downpayment to research, review, and print the records. Plaintiffs indicated that they would

receive the documents electronically at their own expense. /d. 4] 206-07.

On February 1, 2024, plaintiffs’ Office of Civil Rights complaint was accepted and an

official investigation was opened. /d. § 214. An Individualized Education Program (IEP) meeting

for KD was scheduled for February 8, 2024, via Zoom, and plaintiffs were informed that they

would be muted if they spoke too long, went off topic, or berated school staff. Plaintiffs allege that

this was a violation of Section 504 of the Rehabilitation Act. /d. J] 215-17. Plaintiffs informed

Washington Montessori staff on February 7, 2024, that there would be no need to hold the IEP

meeting until plaintiffs had received outstanding FERPA requests. Plaintiffs nonetheless attempted

to log in to in the Zoom IEP meeting and emailed the IEP team to inform them they were waiting

for the meeting but received no response. The meeting was held without plaintiffs and plaintiffs

allege that significant changes were made to KD’s IEP during the meeting and without their input.

Id. 221-230.

Plaintiffs received a disciplinary action email regarding KD’s behavior on February I5,

2024. KD had gotten out of her seat without permission. The following day, Ms. Dahlman received

a phone call informing her that KD would be suspended for one day for failing to follow the

instructions of an adult. Ms. Dahlman was told that if she did not have KD picked up by 11:45

a.m. KD would be suspended for an additional day. Due to being banned from campus, Ms.

DahIman had to schedule a ride share service to pick KD up from school. KD received an

additional day of suspension because she was not picked up by 11:45. Jd. 237-39.

Also on February 16, 2024, the Beaufort County Department of Social Services (Social

Services) called plaintiffs to state they were on the way to plaintiffs’ home due to a complaint. The

social worker interviewed plaintiffs and KD and informed plaintiffs that Social Services had been

informed that KD watched a disturbing video on YouTube. Plaintiffs learned that KD had informed

the Washington Montessori social worker about a year earlier about a disturbing video her cousin

had shown her. Jd. §§ 240-250. On February 26, 2024, Mr. Dahlman visited Social Services and

reported that one of KD’s teachers had physically pulled KD’s arm to get KD to move to another

classroom, and that the contact resulted in a bruise. /d. § 252. Plaintiffs then reported the same

incident to the Washington Police Department on March 13, 2024. On March 14, 2024, a police

officer met with Washington Montessori staff who reported there were no cameras in the schoo]

and that the teacher would not speak about the incident without an attorney. /d. 265. On March

16, 2025, KD was suspended for an additional ten days for having alleged that a teacher harmed

her. Jd. § 268. On March 29, 2024, the Washington Police Department investigation into the

incident was closed. Id. § 283.

On April 29, 2024, plaintiffs were contacted by Social Services concerning a complaint of

truancy. Plaintiffs informed a social worker on May 1, 2024, that they had filed a lawsuit against

Washington Montessori and that their ban from campus and the lack of ride share services in the

area were the reasons for KD’s tardiness. On May 19, 2024, plaintiffs were served with criminal

charges for truancy. /d. §§ 285-291. In January 2025, Washington Montessori instituted a ban on

ride share services for students under the age of thirteen, which plaintiffs allege was intended to

retaliate against them. /d. J§ 297-303.

In their amended complaint, plaintiffs allege the following claims for relief: retaljation in

violation of Section 504 of the Rehabilitation Act of 1973, retaliation in violation of the First

Amendment to the United States Constitution under 42 U.S.C. § 1983, malicious prosecution and

abuse of process, and intentional infliction of emotional distress.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject

matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should be

considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation omitted).

When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction

to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). When a

facial challenge to subject-matter jurisdiction is raised, the facts alleged by the plaintiff in the

complaint are taken as true, “and the motion must be denied if the complaint alleges sufficient

facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009). The Court can consider evidence outside the pleadings without converting the motion into

one for summary judgment. See, e.g., Evans, 166 F.3d at 647.

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478

U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should

accept as true all well-pleaded allegations and should view the complaint in a light most favorable

to the plaintiff.” Mylan Labs., Inc. vy. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint

must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled “allow[] the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and mere

recitals of the elements of a cause of action supported by conclusory statements do not suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual

allegations do not nudge the plaintiff's claims “‘across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570.

At the outset, the Court denies defendant Washington Montessori’s motion to dismiss the

original complaint as moot. See Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017).

A. Section 504 of the Rehabilitation Act claim

As to the amended complaint, Washington Montessori first argues that plaintiffs lack

standing to assert and have failed to exhaust their Section 504 Rehabilitation Act claim. A court

lacks subject matter jurisdiction to hear a plaintiff's claims where the plaintiff lacks Article II

standing. See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458-59 (4th Cir. 2005). “[T]o

establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete,

particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and

(ii1) that the injury would likely be redressed by judicial relief.” TransUnion LLC vy. Ramirez, 594

U.S. 413, 423 (2021). The elements of standing are “not mere pleading requirements but rather an

indispensable part of the plaintiff's case.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

Section 504 of the Rehabilitation Act prohibits, among other things, retaliation against

covered individuals for engaging in protected activity. See S.B. ex rel. A.L. v. Bd. of Educ. of

Harford Cnty., 819 F.3d 69, 78 (4th Cir. 2016). Plaintiffs allege that KD is an individual with a

disability under the Rehabilitation Act and that they and KD have been retaliated against for

advocating for KD’s education. [DE 15] □□ 305-07. KD is not a plaintiff in this action, and

plaintiffs Julianne and Daniel Dahlman thus allege an associational claim for retaliation under the

Rehabilitation Act.

In addition to the constitutional standing requirements, the federal judiciary has

developed a prudential limitation on standing where the plaintiff “generally must

assert his own legal rights and interests, and cannot rest his claim to relief on the

legal rights or interests of third parties.” However, Section 504 creates a right of

action for persons or entities whose claims might otherwise be barred by these

prudential considerations. Specifically, Section 504 permits “any person

aggrieved” by unlawful discrimination to bring an action. Courts have interpreted

this language to prohibit discrimination against an individual based on his or her

association with a disabled person. Nevertheless, “an associational discrimination

claim requires a separate and distinct denial of a benefit or service to a non-disabled

person and may not be premised on a derivative benefit or harm based on treatment

towards a disabled person.”

D.N. vy. Louisa Cnty. Pub. Sch., 156 F. Supp. 3d 767, 772 (W.D. Va. 2016) (cleaned up, internal

citations omitted). “[C]ourts have held that parents who attempt to recover independently for a

violation of their children’s rights do not have standing under the ADA or the [Rehabilitation

Act].” Ahmed v. Napolitano, 825 F. Supp. 2d 112, 116 (D.D.C. 2011).

“To state an associational discrimination claim under Section 504, a plaintiff “must

plausibly allege: (1) a logical and significant association with an individual with disabilities; (2)

that a public entity knew of that association; (3) that the public entity discriminated against them

because of that association; and (4) they suffered a direct injury as a result of the discrimination.”

Stukes v. Sch. Bd. of City of Virginia Beach, No. 2:18CV644, 2019 WL 13298146, at *7 (E.D. Va.

Nov. 21, 2019) (citation omitted); see also Sanford v. Sumter Sch. Dist., No. CV 3:25-3807-SAL-

SVH, 2025 WL 2201113, at *5 (D.S.C. June 17, 2025), report and recommendation adopted, No.

3:25-CV-3807-SAL, 2025 WL 2200999 (D.S.C. Aug. 1, 2025) (citation omitted). Here, plaintiffs’

allegations of retaliation in violation of the Rehabilitation Act are based their advocacy for KD'’s

education. But they have not plausibly alleged that they suffered retaliation because of their

association with KD, or, where they have plausibly alleged that they suffered retaliation because

of their association with KD, they have failed to plausibly allege any direct harm. For example,

plaintiffs allege that they were retaliated against by being banned from campus, resulting in, among

other things, criminal truancy charges. But the complaint’s allegations show that plaintiffs were

banned from campus due to plaintiffs’ own conduct, not because of their association with KD.

Plaintiffs further allege that they were prevented from participating in KD’s IEP meetings, that

plaintiffs were denied sufficient access to KD’s records, that KD was suspended and disciplined

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inappropriately, and that KD’s IEP was inappropriately modified. But plaintiffs have failed to

plausibly allege that any of these actions caused them to suffer direct injury. See D.N., 156 F. Supp.

3d at 773 (emotional and financial harms arising from discrimination against student insufficient

to demonstrate prudential standing); Parrott v. Florence Sch. Dist. One, No. CV 4:23-2375-JD-

KDW, 2023 WL 7287357, at *3 (D.S.C. July 18, 2023), report and recommendation adopted, No.

4:23-CV-2375-JD, 2023 WL 7102164 (D.S.C. Oct. 27, 2023) (derivative harm based on treatment

of student insufficient); see also Glass y. Hillsboro Sch. Dist. LJ, 142 F. Supp. 2d 1286, 1292 (D.

Or. 2001) (where parents fail to allege that they, rather than their child, had a right to services from

defendant, parents fail to demonstrate associational standing).

Plaintiffs have failed to plausibly allege an associational retaliation claim under the

Rehabilitation Act, and this claim is therefore dismissed.?

B. First Amendment claim

Defendants next argue that plaintiffs have failed to plausibly allege that they were deprived

of their free speech rights under the First Amendment.

“The First Amendment protects not only the affirmative right to speak, but also the ‘right

to be free from retaliation by a public official for the exercise of that right.”” Adams v. Trustees of

the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (citation omitted). Retaliation in

violation of the First Amendment is actionable because it tends to chill the exercise of

constitutional rights. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500

(4th Cir. 2005). “To establish a First Amendment retaliation claim, a plaintiff must prove three

elements: (i) that his speech was protected; (ii) that the defendant’s alleged retaliatory action

adversely affected his constitutionally protected speech; and (iii) that a causal relationship existed

* The Court, therefore, declines to consider defendants’ argument that plaintiffs have failed to

exhaust this claim and that it is barred by claim-splitting or res judicata.

1]

between his speech and the defendant's retaliatory action.” Trulock v. Freeh, 275 F.3d 391, 404

(4th Cir. 2001). However, “[w]here there is no impairment of the plaintiff's rights, there is no need

for the protection provided by a cause of action for retaliation. Thus, a showing of adversity is

essential to any retaliation claim.” Am. C.L. Union of Maryland, Inc. v. Wicomico Cnty., Md., 999

F.2d 780, 785 (4th Cir. 1993).

Here, plaintiffs allege that they engaged in protected speech when they questioned the

qualifications of school staff and when they communicated with other parents about their concerns

and discussed their concerns at public board meetings. Plaintiffs allege that their ban from campus

was specifically designed to prevent plaintiffs from raising issues of concern and that the ban

adversely impacted their constitutionally protected speech. [DE 15] □□ 312-316. In opposition to

the motion to dismiss, plaintiffs argue that they consistently engaged in First Amendment activity

by reporting their concerns to government agencies such as the North Carolina Auditor Hotline

and the Washington Police Department. [DE 22] at 25. Plaintiffs argue that, shortly after they

contacted the Washington Police Department, they were banned from campus except for the car

line. Plaintiffs also point to their filing of multiple petitions with the Office of Administrative

Hearings regarding KD’s right toa FAPE as First Amendment protected activity, as well as reports

to the Department of Social Services and the Washington Police Department regarding truancy as

evidence of retaliation.

It is true that “[s]chool officials have the authority to control students and school personnel

on school property, and also have the authority and responsibility for assuring that parents and

third parties conduct themselves appropriately while on school property.” Lovern v. Edwards, 190

F.3d 648, 655 (4th Cir. 1999); see also Davison v. Rose, 19 F.4th 626, 641 (4th Cir. 2021) (“Lovern

establishes the constitutionality of no-trespass bans against parents attempting to enter school

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grounds.”). However, plaintiffs have plausibly alleged that their ban from campus and the car line

adversely affected their protected speech, in that it would “deter ‘a person of ordinary firmness’

from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 500 (4th Cir. 2005) (citation omitted); see also Davison v. Rose, No.

116CV540AJTIDD, 2019 WL 13193754, at *14 (E.D. Va. July 31, 2019) (parent plausibly alleged

First Amendment retaliation when he was banned from campus as a public safety threat after he

questioned school decisions). At this early stage, plaintiffs’ allegations are sufficient to go forward

on their First Amendment retaliation claim. The motion to dismiss this claim is denied.

C. Malicious prosecution and abuse of process claim

To prove malicious prosecution, “a plaintiff must show that the defendant (1) initiated or

participated in the earlier proceeding, (2) did so maliciously, (3) without probable cause, and (4)

the earlier proceeding ended in favor of the plaintiff.” Turner v. Thomas, 369 N.C. 419, 425 (2016).

Malice in this context can be demonstrated by proving that the defendant either “was motivated

by personal spite and a desire for revenge or that defendant acted with reckless and wanton

disregard for plaintiffs’ rights.” Fox v. City of Greensboro, 279 N.C. App. 301, 316 (2021) (internal

quotations omitted, quoting Becker v. Pierce, 168 N.C. App. 671, 676 (2005)). But even at this

stage of the proceeding, a plaintiff must come forward with more than mere legal conclusions and

recitations of the elements to sufficiently allege malice. See Mayfield v. Nat’l Ass’n for Stock Car

Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (“malice must still be alleged in accordance

with Rule 8—-a ‘plausible’ claim for relief must be articulated.”).

This claim rests on plaintiffs’ allegations that Washington Montessori made reports to the

Department of Social Services regarding suspected improper supervision of KD and excessive

absences from school. Under North Carolina law, a school has a duty to report suspected child

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neglect to the Department of Social Services. N.C. Gen. Stat. §§ 7B-301, 115C-400. Schools are

also required to report truancy. /d. § 115C-378(e)-(f). Persons who make reports to the Department

of Social Services in good faith are immune from civil liability. Jd. § 7B-309. Moreover, certainly

as regards the criminal truancy charges, while Washington Montessori allegedly made the truancy

report to the police, the police initiated charges, suggesting the presence of probable cause.

Finally, plaintiffs’ allegations of malice are conclusory and speculative in the complaint.

See, e.g., [DE 15] 9328. Plaintiffs have failed to plausibly allege a claim for malicious prosecution,

and this claim is properly dismissed.

In a single claim, plaintiffs have alleged a claim for both malicious prosecution and abuse

of process, and Washington Montessori’s motion does not expressly argue for dismissal of

plaintiffs’ claim for abuse of process. Accordingly, plaintiff's claim for abuse of process may

proceed. See Fox, 279 N.C. App. at 326 (noting “distinction between malicious prosecution and

abuse of process is that malicious prosecution requires a claim to be improperly instituted, whereas

abuse of process requires a wrongful or improper act after the institution of process.”’).

D. Intentional Infliction of Emotional Distress

To prevail on a claim for intentional infliction of emotional distress (IIED), a plaintiff must

be able to show “(1) extreme and outrageous conduct; (2) which is intended to cause and does

cause (3) severe emotional distress to another.” May v. City of Durham, 136 N.C. App. 578, 586

(2000). “Liability has been found only where the conduct has been 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.” Hogan v. Forsyth Country Club Co.,

79 N.C. App. 483, 493 (1986) (citing Restatement (Second) of Torts § 46 comment (d) (1965)).

Plaintiffs allege that reporting truancy and suspected neglect to the Department of Social Services

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and law enforcement, banning plaintiffs from campus, and other actions in the complaint support

their intentional infliction of emotional distress claim. Plaintiffs have failed to plausibly allege any

extreme, atrocious, or utterly intolerable behavior on the part of Washington Montessori. This

claim is appropriately dismissed.

CONCLUSION

Accordingly, for the foregoing reasons, the motion to dismiss the original complaint [DE

12] is DENIED AS MOOT.

The motion to dismiss the amended complaint [DE 18] is GRANTED IN PART and

DENIED IN PART. Plaintiffs’ First Amendment retaliation and abuse of process claims may

proceed, and plaintiffs’ Rehabilitation Act and intentional infliction of emotional distress claims

are dismissed.

Defendant Midgette has not appeared in this action and the docket does not reflect that he

has been served. Fed. R. Civ. P. 4(m) requires that service on a party must be effected not more

than ninety days from the filing of the complaint. Plaintiffs shall, within fourteen days of the date

of entry of this order, demonstrate why defendant Midgette should not be dismissed pursuant to

Fed. R. Civ. P. 4(m).

SO ORDERED, this (Paay of December 2025.

PP ft

UNITED STATES DISTRICT JUDGE

15S