CHRISTIAN KILLORAN TERRIE KILLORAN CHRISTIAN KILLORAN SHANNON KILLORAN v. WESTHAMPTON BEACH SCHOOL DISTRICT CAROLYN PROBST JASON COHEN MARY BERGMAN SEAN MONTPETIT KATIE PETERS (2025)

REPORT AND RECOMMENDATION

Plaintiffs Christian Killoran ¹ and Terrie Killoran are the parents of Plaintiff Shannon Killoran, a former student in the Westhampton Beach School District (hereinafter the “District”).

Defendants include the District and various District officials—superintendent Jason Cohen, head women's varsity lacrosse coach Mary Bergman, head women's junior-varsity lacrosse coach Sean Montpetit, and head women's varsity basketball coach Katie Peters (“Defendants”).

The Killorans have an extensive litigation history with the District, mounting over a dozen legal challenges over the past eight years seeking to include their son Aiden (who has Down syndrome) in the District's educational programs. After several successful outcomes in an Article 78 proceeding and subsequent state administrative proceedings, Plaintiffs allege that the District began retaliating against their family. Specifically, Plaintiffs claim that the District targeted Shannon (who was a high school student in the District at the time) by denying her participation on its women's varsity basketball and lacrosse teams.

Now before the Court is Defendants’ motion to dismiss Plaintiff's Complaint (Electronic Case Filing (“ECF”) No. 1) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See ECF No. 16. After the parties fully briefed Defendants’ motion, Plaintiffs subsequently sought leave to amend the Complaint (ECF No. 23) and filed a Proposed Amended Complaint (ECF No. 23-2 (“PAC”)). The motions are before the undersigned on referral by District Judge Gary R. Brown. Electronic Order, July 17, 2024.

For the reasons set forth below, the undersigned recommends that the Court grant Defendants’ motion to dismiss with prejudice and deny Plaintiffs’ motion for leave to amend.

I. BACKGROUND

A. Factual Background 2

1. Shannon's Sophomore Year

During the 2022-2023 academic year, Shannon was a high school sophomore in the District and participated on both the basketball and lacrosse teams. PAC. ¶¶ 57, 63, 72, 89. Following a legal victory for her brother Aiden in December 2022, Shannon allegedly was removed from the varsity basketball team by Coach Katie Peters and reassigned to junior varsity. Id. ¶¶ 61-66. Shannon claims to be the only player ever demoted from varsity to junior varsity in the District's history after having been elevated as a freshman. Id. ¶ 67. Coach Peters cited Shannon's competing lacrosse obligations as the reason for the demotion. Id. ¶ 68.

In March 2023, coinciding with Aiden's approved age-variance in the District, Shannon was not invited to join the varsity lacrosse team. Id. ¶ 78-82. Coach Mary Bergmann allegedly stated that the team was full, and Shannon would be better served on junior varsity because others who played her position “needed to get playing time.” Id. ¶¶ 86-88.

2. Shannon's Junior Year

Following her sophomore year, Shannon attended several Division II college prospect camps, where she was designated as a collegiate lacrosse recruiting candidate. Id. ¶ 100. She began her junior year in the District in fall 2023. Id. ¶ 101. At or about the same time, a District school teacher engaged Mr. Killoran to file a retaliation claim against the District (unrelated to any of his son Aiden's cases). Id. ¶ 102. Thereafter, in winter 2023, Shannon again tried out for the basketball team. Id. ¶ 105. After informing Coach Katie Peters that she would occasionally miss practices for lacrosse, Ms. Peters allegedly told Shannon that “she could not even be on the team at all” and instructed her to “turn in her jersey.” Id. ¶ 107. As a result, Shannon did not play basketball that year. Id. ¶ 111.

In March 2024, Shannon tried out for the varsity lacrosse team. Id. ¶ 112. Though Shannon again allegedly met or exceeded the required athletic metrics, Coach Bergmann informed her that she would not make the varsity team. Id. ¶¶ 113-114. Instead, Ms. Bergmann selected younger players with allegedly less experience than Shannon's to join the varsity team. Id. ¶ 115.

3. Shannon's Senior Year

In the summer following her junior year, Shannon continued individual training and private workouts. Id. ¶ 124. On July 11, 2024, Wagner College offered Shannon a Division I lacrosse scholarship, and she formally committed to the school in November 2024. Id. ¶¶ 126, 128. Nonetheless, during tryouts in March 2025, Coach Bergmann once again declined to place Shannon on the varsity team despite her alleged strong performance. Id. ¶¶ 131-35. Plaintiffs allege that there was no cap on team size, and fifteen younger players were chosen—including twelve who had previously played with Shannon on junior varsity—where she had outscored them all. Id. ¶¶ 136-40.

Because Shannon was ineligible to play on the junior varsity team due to her age, this foreclosed her last opportunity to play high school lacrosse. Id. ¶ 141. Plaintiffs allege that the decision prevented Shannon from maintaining her skills in a competitive environment, caused heightened anxiety and panic attacks, and led to social ostracization from her former teammates. Id. ¶¶ 142-44. Furthermore, Plaintiffs allege that Shannon cancelled her commitment to Wagner College, lost interest in the sport, and chose to attend the College of Charleston, where she would not play collegiate lacrosse or receive an athletic scholarship.³ Id. ¶¶ 145-46.

B. Procedural Background

1. Prior Litigation Involving Aiden

The dockets in the Eastern District of New York and the Second Circuit reflect numerous decisions involving “Christian Killoran ․ and the Westhampton Beach School District ․ over the education of [Mr. Killoran's] son, [Aiden], a young man who has Down syndrome.” See Killoran v. Westhampton Beach UFSD, No. 21-2647, 2023 WL 4503151, at *1 (2d Cir. July 13, 2023).⁴ The Court assumes familiarity with the nature of the claims asserted on behalf of Aiden based on the extensive record of judicial decisions spanning more than six years.⁵

On April 1, 2024, the parties advised the undersigned that they were discussing a potential global resolution of the remaining cases related to Aiden's education. See Killoran v. Westhampton Beach Sch. Dist., No. 23-CV-05298, at ECF No. 34. On May 31, 2024, the parties appeared before the undersigned to discuss potential settlement. See id., at ECF No 37. In the summer of 2024, the undersigned facilitated these continuing settlement discussions. See Killoran v. Westhampton Beach Sch. Dist., No. 23-CV-01115, at ECF No. 25; see also Electronic Order, Aug. 27, 2024. On September 30, 2024, the undersigned issued an order noting that “the parties have agreed to a settlement in principle.” See id. at Electronic Order, Sept. 30, 2024. The undersigned later ordered the parties to file stipulations of dismissal in five related actions—No. 23-CV-5298, No. 23-CV-1115, No. 22-CV-5770, No. 22-CV-1632, and No. 20-CV-4121—and the parties complied. See id. at Electronic Order, Oct. 17, 2024. Following entry of those stipulations, these cases were dismissed and effectively ended all federal litigation brought by Mr. Killoran relating to Aiden.

That resolution, however, did not mark the end of the Killorans’ disputes with the District. On May 22, 2024, Mr. Killoran filed the present lawsuit. Notably, the lawsuit relating to Shannon was filed while the Killorans and the District were already discussing a potential resolution of Aiden's claims. See supra.

2. The Present Action

Plaintiffs assert nine causes of action in this case: (1) “Violation of the Civil Rights Act” (PAC ¶¶ 148-73)⁶ ; (2) unlawful retaliation under the Americans with Disabilities Act (“ADA”) (id. ¶¶ 174-83); (3) retaliation under Section 504 of the Rehabilitation Act (id.); (4) free speech violations under the First Amendment and 42 U.S.C. § 1983 (id. ¶¶ 184-88); (5) due process violations under the Fourteenth Amendment and 42 U.S.C. § 1983 (id. ¶¶ 189-91); (6) equal protection violations under the Fourteenth Amendment and 42 U.S.C. § 1983 (id. ¶¶ 192-207); (7) intentional infliction of emotional distress (id. ¶¶ 208-11); (8) negligent infliction of emotional distress (id. ¶¶ 212-18); and (9) violations of the Dignity for All Students Act (“DASA”) (id. ¶¶ 219-22).

On July 16, 2024, Defendants filed a letter seeking leave to file a motion to dismiss. See ECF No. 13. On July 17, 2024, Judge Brown referred all pretrial matters, including dispositive motions, to the undersigned. See Electronic Order, July 17, 2024. On August 2, 2024, the undersigned set a briefing schedule for Defendants’ motion to dismiss and directed the parties to file all their submissions by September 17, 2024. Electronic Order, Aug, 2, 2024. The parties bundle-filed their motion briefing on September 17, 2024, and included a supporting memorandum of law filed at ECF No. 16-3 (“Defs. MTD”). Plaintiffs’ opposition brief was filed at ECF No. 16-5 (“Pls. Opp.”), and Defendants’ reply was filed at ECF No. 16-7 (“Defs. Reply”).

Recognizing that Shannon was still in high school in the District and that relevant developments were potentially ongoing, the Court later ordered the parties to submit status reports by January 31, 2025, addressing (1) any updated information regarding Shannon's participation in sports activities at the District, and (2) any updated information regarding whether she had received any college sports scholarship offers or admissions. Electronic Order, Dec. 18, 2024. Plaintiffs then advised the Court that Shannon was playing varsity tennis and basketball at the District and also had been offered an athletic scholarship to play Division I lacrosse at Wagner College. See ECF No. 17.

The Court also ordered the parties to attend a status conference on February 20, 2025. Id. At the status conference, the Court encouraged the parties to consider settlement and directed them to submit ex parte letters regarding settlement discussions. See ECF No. 18. Settlement discussions were not fruitful, and the Court ordered another status conference. See Electronic Order, Mar. 17, 2025; Electronic Order, Mar. 19, 2025.

Meanwhile, Plaintiffs filed a letter indicating that Shannon would not be playing on the District's varsity lacrosse team during her senior year. ECF No. 20. Plaintiffs sought leave to amend their Complaint to reflect these developments. Id. Defendants responded that they did not consent to amendment and did not intend to withdraw their dismissal motion, arguing that amendment would be futile. ECF No. 21.

The Court held a status conference on April 11, 2025, and set a briefing schedule for Plaintiffs’ motion to amend, intending to address the pending motion to dismiss and motion to amend together. See Electronic Order, Apr. 11, 2025. Plaintiffs’ motion to amend appears at ECF No. 23 (“Pls. Mot. to. Amend”), with the PAC at ECF No. 23-2. Defendants filed a letter opposing the motion at ECF No. 24 (“Defs. Opp. to Mot. to Amend”), contending that nothing in the PAC cures the deficiencies identified in their motion to dismiss.

On September 2, 2025, the Court ordered Plaintiffs to confirm Shannon's educational status. See Electronic Order, Sep. 2, 2025. That same day, Plaintiffs filed a letter indicating that Shannon had graduated from high school in the District and currently attends the College of Charleston (not on athletic scholarship) where she participates on the school's club lacrosse team. See ECF No. 25.

II. LEGAL STANDARD

Defendants moved to dismiss Plaintiff's Complaint under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). See Defs. MTD at 1. Plaintiffs filed their motion to amend pursuant to Fed. R. Civ. P. 15. See Pls. Mot. to. Amend at 4.

A. Fed. R. Civ. P. 12(b)(1)

“A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233, 241 (E.D.N.Y. 2014) (internal quotation marks omitted). Determining the existence of subject matter jurisdiction is a threshold inquiry, and a claim is “properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (citation omitted). “[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Id. (alteration in original) (internal quotations and citation omitted).

B. Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Dawkins v. Schott NYC Corp., No. 22-CV-3617, 2023 WL 6283285, at *2 (E.D.N.Y. Sept. 26, 2023) (quoting Iqbal, 556 U.S. at 678). In resolving a motion to dismiss, “[t]he court accepts as true all well-pleaded factual allegations in the complaint, [and] draws all reasonable inferences in favor of the nonmoving party.” Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019) (internal quotations and citations omitted).

C. Fed. R. Civ. P. 15

Courts must “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). This permissive standard reflects the “strong preference for resolving disputes on the merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (citation omitted). Leave to amend “may be denied for futility, such as where a proposed amended complaint could not withstand a motion to dismiss.” NYU Langone Health Sys. v. Northwell Health, Inc., No. 23-CV-5032, 2024 WL 4872297, at *2 (S.D.N.Y. Nov. 22, 2024) (citing Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65 (2d Cir. 2015)). “In determining whether a proposed amended complaint would survive a motion to dismiss, the Court accepts all factual allegations in the proposed amended complaint as true and draws all reasonable inferences in the light most favorable to the plaintiff.” Id. (citing Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013)).

III. DISCUSSION

Defendants move to dismiss the Complaint in its entirety. They first argue that Plaintiffs lack standing, because Plaintiffs’ alleged harms—i.e., psychological and emotional distress, speculative impacts on Shannon's collegiate prospects, and potential loss of scholarship opportunities—are neither concrete nor particularized, and that Shannon's continued recruitment prospects (as of the time the motion was made) undermine any actual injury. See Defs. MTD at 6-7. They further challenge the legal sufficiency of Plaintiffs’ claims on numerous grounds, contending that (1) Plaintiffs lack standing to bring associational discrimination claims under the Rehabilitation Act and ADA (id. at 8-12); (2) Plaintiffs fail to state a claim under Section 1983 for First Amendment, due process, and equal protection violations (id.at 12-16); (3) Plaintiffs fail to establish Monell liability (id. at 16-17); (4) the individual Defendants are entitled to qualified immunity (id. at 18-19); (5) Plaintiffs fail to state claims for intentional and negligent infliction of emotional distress (id. at 20-22); and (6) there is no private right of action to support Plaintiffs’ DASA claim (id. at 23).

Plaintiffs, on the other hand, contend in their Opposition that they adequately allege concrete emotional distress damages and harm to Shannon's collegiate recruitment prospects. See Pls. Opp. at 3-4. They further argue that these injuries are traceable to Defendants’ alleged retaliatory conduct and redressable by judicial relief. Id. Plaintiffs then respond, in turn, to Defendants’ arguments challenging the legal sufficiency of their claims. Id. 5-23.

After the parties fully briefed Defendants’ motion, Plaintiffs moved to amend the Complaint to add recent developments related to their claims.⁷ Specifically, they seek to add allegations that (1) Shannon continued to play competitive lacrosse during her senior year of high school; (2) she received a Division I scholarship offer from Wagner College; (3) she formally committed to play lacrosse at Wagner, which the District's athletic program publicly recognized on a social media account; (4) she again tried out for—but did not make—the varsity lacrosse team her senior year; and (5) as a result, she suffered anxiety, panic attacks, emotional distress, and lost her love for lacrosse; and (6) she decided not attend Wagner College on a lacrosse scholarship and instead attend the College of Charleston (not on athletic scholarship). See Pls. Mot. to Amend at 1-4; see also PAC ¶¶ 124-47 (setting forth these new allegations). Plaintiffs argue that these developments are a continuation of the alleged retaliation underlying the original Complaint. See Pls. Mot. to Amend at 3-4.

Defendants respond that even accepting the new allegations as true, amendment is futile because the PAC fails to address the deficiencies in the original Complaint and fails to state a claim. See Defs. Opp. to Mot. to Amend at 1. They maintain that the PAC's additions are even more temporally removed from the alleged protected activity, and that Shannon's claimed injuries were self-inflicted—i.e., she chose not to play lacrosse at Wagner College. Id. at 2.

For the reasons set forth herein,⁸ the undersigned recommends that the Court grant the motion to dismiss with prejudice and deny the motion for leave to amend.

A. Standing

Defendants contend that the Court should dismiss the Complaint and deny Plaintiffs leave to amend for lack of standing, arguing that Plaintiffs’ allegations fail to establish a concrete injury and fail to link causation to Defendants’ actions. See Defs. MTD at 6-7; Defs. Opp. to Mot. to Amend at 2. Plaintiffs respond that they have suffered concrete injuries sufficient to support standing and that those injuries were directly caused by Defendants’ alleged retaliatory conduct. See Pls. Opp. at 3-4; Pls. Mot. to Amend at 3-4.

The Court agrees in part with Defendants. Christian and Terrie lack standing because the injuries they allege as parents are derivative of those asserted on behalf of Shannon and are not particularized to them. On the other hand, Shannon plausibly alleges a concrete injury stemming from her exclusion from the varsity lacrosse team and the accompanying emotional distress. However, her other alleged harms (e.g., speculative loss of future scholarship or recruiting opportunities and the family's voluntary expenditures toward her athletic development) are too hypothetical and speculative to establish injury in fact. Accordingly, the Court concludes that the parental plaintiffs lack standing altogether, while Shannon's standing is limited only to the injuries arising from her allegedly improper exclusion from the high school sports teams.

1. Standing Legal Standard

“Federal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Rather, Article III limits a federal court's jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “For a lawsuit to constitute a case within the meaning of Article III, the plaintiff must have standing to sue,” requiring the plaintiff to show three elements: “injury in fact, causation, and redressability.” Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 111 (2025) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

The first requirement, injury in fact, requires the plaintiff to demonstrate an injury that is “concrete,” “particularized,” and “actual or imminent, not speculative.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024); see also Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (same). The injury “must affect ‘the plaintiff in a personal and individual way’ and not be a generalized grievance.” Id. (quoting Lujan, 504 U.S. at 560 n.1); see also Allen v. Wright, 468 U.S. 737, 751 (1984) (“Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as ․ the rule barring adjudication of generalized grievances[.]”). For example, “[a]n injury in fact can be a physical injury, a monetary injury, an injury to one's property, or an injury to one's constitutional rights[.]” Id.

The second requirement of causation requires the plaintiff to “establish that the plaintiff's injury likely was caused or likely will be caused by the defendant's conduct. Id. at 382. “The second and third standing requirements—causation and redressability—are often ‘flip sides of the same coin.’ ” Id. at 380 (quoting Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 288 (2008)). Thus, “[i]f a defendant's action causes an injury, enjoining the action or awarding damages for the action will typically redress that injury.” Id. at 381

As the party invoking federal jurisdiction, Plaintiffs “bear the burden of demonstrating that they have standing”—they “must maintain their personal interest in the dispute at all stages of litigation,” they “must demonstrate standing with the manner and degree of evidence required at the successive stages of the litigation,” and they “must demonstrate standing for each claim that they press and for each form of relief that they seek.” TransUnion, 594 U.S. at 430-31 (internal quotations and citations omitted).

2. Christian and Terrie Lack Standing Because Their Alleged Harm Is Particularized to Their Daughter Shannon

The thrust of the parents’ theory of harm is based on “emotional distress damages, as well as damage upon Shannon's collegiate recruitment process, by virtue of the retaliatory, unequal, and unfair treatment inflicted upon Shannon.” Pls. Opp. at 4; see also Pls. Opp.at 4 n.5 (“Shannon is a teen-age girl who had to bare [sic] the unjust embarrassment of not being invited on the team, when everyone involved knew she deserved to be. In addition, Shannon was deprived of the ability to compete at a higher level and continue to develop her game. Finally, Shannon was deprived of the ability to gain valuable film work and exposure which leads to collegiate interest. In light of the foregoing, Shannon suffered immediate injuries, as well as an ever-expanding future scope of damages.”). Accepting the PAC's allegations as true, these theories of harm are insufficient to establish that Christian and Terrie themselves suffered an injury in fact that can support their independent standing to bring this lawsuit.

First, the alleged injuries are not sufficiently particularized to Christian and Terrie because they did not suffer any harm resulting from direct action taken against them by Defendants. Standing requires a “concrete” and “particularized” injury affecting the plaintiff “in a personal and individual way”— not a generalized grievance or emotional reaction to harm suffered by another. See All. for Hippocratic Med., 602 U.S. at 392-93 (finding that plaintiff's causation theories to connect defendant's actions to their’ alleged injuries in fact were “simply too speculative or too attenuated”); see also Clapper, 568 U.S. at 411-14 (finding that plaintiff's standing theory fails, because it relied on a “speculative chain of possibilities”). While all parents may wish their children success, any claimed emotional anguish over their child not playing on a high school sports team does not constitute an injury in fact traceable to the Defendants’ conduct. Defendants alleged conduct was directed toward Shannon, and the resulting harm was suffered by Shannon.

Second, the parents’ alleged pocketbook injuries relating to Shannon's travel, club participation, and training are too speculative to satisfy the injury-in-fact requirement. Those expenditures were voluntary, and it is entirely conjectural whether the parents would or would not have invested similar costs in Shannon's development had she made the varsity team.

Finally, any claimed economic injury arising from lost scholarship opportunities is belied by the PAC itself, which concedes that Shannon received a Division I scholarship offer at Wagner Collage yet chose not to play there.

Accordingly, the Court finds the Christian and Terrie lack standing because the PAC fails to allege a concrete and particularized injury sufficient to establish Article III standing.

3. Shannon Has Standing, But Only as to Her Denial from the Lacrosse Team and Related Emotional Harm

Unlike her parents, Shannon alleges a direct and personal injury. The PAC states that she was denied the opportunity to play on the District's varsity lacrosse team and that this exclusion caused her emotional distress. PAC ¶ 143. The Court finds these allegations sufficient to establish a concrete injury for standing purposes. The Court, however, finds that Shannon's other alleged injuries are too speculative or contradicted by the PAC itself.

First, the PAC alleges that Shannon was excluded from the District's varsity basketball team. PAC ¶¶ 66; 111. But that allegation cannot support standing because the PAC concedes that Shannon's non-participation was due to her own scheduling conflicts and competing obligations, not to any retaliatory or discriminatory act by Defendants. PAC ¶¶ 68, 106.

Second, Shannon's asserted loss of collegiate recruitment or scholarship opportunities is too speculative. The PAC acknowledges that Shannon received a Division I offer at Wagner College and ultimately chose not to play, which undermines any claim that the high school team-selection decision by the District caused a lost opportunity for Shannon. PAC ¶ 106. Likewise, the family's personal expenditures on travel, training, and club participation reflect voluntary investments in Shannon's athletic development that the family very possibly would have made regardless of whether she made the high school varsity roster. Finally, any claimed loss of enjoyment of the sport is refuted by Shannon's own decision to continue playing club lacrosse in college, which demonstrates that she most likely continues to enjoy the sport in some capacity.

Finally, the Court notes that Shannon's exclusion from the lacrosse team during her senior year of high school occurred at or about the same time as the global settlement discussions before the undersigned regarding her brother Aiden's claims and weakens any inference that her non-selection was retaliatory. Although this fact undermines the causation element, the Court still draws all reasonable inferences in Shannon's favor and finds that the PAC's allegations are sufficient to support standing as to the denial from the varsity lacrosse team and the related emotional harm.

Accordingly, the Court finds the Shannon has sufficient standing to bring her alleged claims, but only as to her exclusion from the District's varsity lacrosse team and the related emotional harm caused by that exclusion.

B. Legal Insufficiency of Plaintiffs’ Claims

While Shannon has standing (as discussed above), the PAC nonetheless fails to state any actionable claims by Shannon (or even her parents) that can survive dismissal.

1. ADA, Rehabilitation Act, and First Amendment Retaliation Claims

Plaintiffs seek to recover for violations of the ADA, Rehabilitation Act, and First Amendment under 42 U.S.C. § 1983 alleging that their right to advocate for Aiden under these provisions was “wrongfully impaired and throttled due to the retaliatory actions committed by the defendants.” PAC ¶¶ 174-88. The claims require that each plaintiff show that they engaged in protected activity and suffered an adverse action because of it. See, e.g., Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002) (“[T]he elements of a retaliation claim under either Section 504 [of the Rehabilitation Act] or the ADA are (i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.”) (internal quotations omitted); Deep v. Coin, 453 F. App'x 49, 55 (2d Cir. 2011) (finding that to prevail on a First Amendment retaliation claim, “plaintiff must demonstrate: (1) the speech at issue was protected; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected speech and the adverse action.”)

The Court finds that the PAC fails to state a claim under these retaliation-based claims. Here, the only alleged protected activity underlying all three retaliation-based claims consist of the parents’ prior litigation and advocacy on behalf of their son Aiden. PAC ¶¶ 163-64; see Lee v. Natomas Unified Sch. Dist., 93 F. Supp. 3d 1160, 1168 (E.D. Cal. 2015) (finding that advocating on behalf of a disabled student is a protected activity under the ADA and Section 504). While the parents engaged in the protected activity, that alleged adverse action was not taken against them. The alleged adverse action—i.e., denying Shannon's participation on District sports teams—affected Shannon. By contrast, Shannon did not personally engage in any protected activity. See generally, PAC. The result is a fatal mismatch between who engaged in a protected activity and who suffered an alleged adverse action that causes each claim to fail. Cf. Weixel, 287 F.3d at 148 (finding that the district court erred in concluding that plaintiffs failed to allege a cognizable retaliation claim where plaintiffs were the parties actually engaging in a protected activity).

Accordingly, the undersigned finds that the Court should grant Defendants’ motion to dismiss Plaintiffs’ ADA, Rehabilitation Act, and First Amendment Retaliation claims under Rule 12(b)(6).

2. Due Process Claim

The Due Process claim relating to denial of participation in high school sports teams fails because it is well established that there is no due process interest in playing or participating in interscholastic athletics. See Radwan v. Manuel, 55 F.4th 101 (2d Cir. 2022) (“[O]ver the years courts have rejected the notion that an individual has a general right to play or participate in collegiate athletics.”) (collecting cases); see also Doe v. Salina, No. 23-CV-3529, 2024 WL 5077629, at *26 (E.D.N.Y. Dec. 11, 2024) (“Accordingly, it is only when a student is excluded from the entire educational process that due process must be afforded. His exclusion from a particular course, event or activity is of no constitutional import.”); Immaculate Heart Cent. Sch. v. New York State Pub. High Sch. Athletic Ass'n, 797 F. Supp. 2d 204, 217 (N.D.N.Y. 2011) (“[P]articipation in interscholastic athletics is not protected by due process.”) (collecting cases); Gardner v. Wansart, No. 05-CV-3351, 2006 WL 2742043, at *5 (S.D.N.Y. Sept. 26, 2006) (“[D]ue process need not accompany a public school's decision to remove a student from involvement in extracurricular activities.”) (collecting cases). Thus, Shannon possessed no due process right to have participated on the District's varsity sports teams. As a result, the claim clearly fails.

3. Equal Protection Claim

Plaintiffs assert an equal protection claim based on Shannon's allegedly discriminatory exclusion from the high school varsity lacrosse team. ECF No. 1 ¶¶ 168-183. In support of this cause of action, Plaintiffs contend that “Shannon profiled as ‘relevantly similar’ to all of the other girls who tried-out for the varsity lacrosse team․ [and] Shannon possessed all of the relevant eligibility criteria necessary to try-out for the varsity lacrosse team. Id. ¶¶ 176-77. The PAC contains identical allegations. PAC ¶¶ 192-207. Plaintiffs do not allege that any discrimination against Shannon was based on her membership in a protected class and, in fact, argue that this is a “class of one claim.” Pls. Opp. at 16. Defendants contend that this equal protection claim fails in both the original Complaint and PAC. Defs. MTD at 24-25. The undersigned agrees that this equal protection claim should be dismissed as a matter of law.

“A plaintiff states a claim on a “class-of-one” theory if she adequately alleges that she was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Bell v. Kaleida Health, No. 25-366-CV, 2025 WL 2938354, at *3 (2d Cir. Oct. 16, 2025) (citing Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)); accord Kinsella v. Inc. Vill. of E. Hampton, No. 15CV3948GRBSIL, 2021 WL 11633992, at *14 (E.D.N.Y. Dec. 6, 2021). Mere “conclusory assertions” that a plaintiff is similarly situated to others are insufficient to withstand dismissal. Bell, 2025 WL 2938354, at *3; see also NRP Holdings LLC v. City of Buffalo, 916 F.3d 177, 198 (2d Cir. 2019) (holding that silence on the details of a purported comparator was “fatal” to a class-of-one theory); Kinsella, 2021 WL 11633992, at *14 (same). In order to proceed under this theory, “a class-of-one claim requires a plaintiff to show an extremely high degree of similarity between [himself] and [his] comparators.” Kinsella, 2021 WL 11633992, at *14 (citation omitted).

Plaintiffs’ barebones allegations in the original Complaint and PAC about “other girls who tried-out for the varsity lacrosse team” (Complaint ¶ 176; PAC ¶ 200) are too vague and conclusory to support the equal protection claim under a “class of one” theory. See Madruga v. Utah High Sch. Activities Ass'n Inc., No. 4:21-CV-00089-DN, 2021 WL 4748493, at *6 n.52 (D. Utah Oct. 12, 2021) (rejecting “class of one” claim regarding participation in high school sports). The mere fact that there were other female students seeking to play high school lacrosse in the District does not establish the requisite level of similarity, nor that they were comparable to Shannon in the relevant way, so that Plaintiffs have failed to establish that “no rational person” could regard her circumstances to differ from the other students “to a degree that would justify the differential treatment on the basis of a legitimate government policy.” Bell, 2025 WL 2938354, at *3 (citation omitted).

4. Remaining State Law Claims

Plaintiffs also allege that Defendants violated various New York state laws. ECF No. 1 ¶¶ 184-198. Once a district court's discretion over supplemental jurisdiction is triggered under 28 U.S.C. § 1367(c)(3), it balances the traditional “values of judicial economy, convenience, fairness, and comity.” Hu v. City of New York, No. 22-183, 2023 WL 3563039, at *3 (2d Cir. May 19, 2023) (quoting Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (citation omitted). However, because the undersigned recommends that all the federal claims should be dismissed, the Court recommends that jurisdiction not be exercised as to these remaining state claims. See Walker v. City of New York, 367 F. Supp. 3d 39, 65–66 (S.D.N.Y. 2019) (“[t]he Court has discretion to decline to exercise supplemental jurisdiction over state-law claims that remain once all federal law claims have been dismissed.”) (citing Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 121–22 (2d Cir. 2006)). “In the usual case in which all federal-law claims are eliminated before trial, the balance of factors ․ will point toward declining to exercise jurisdiction over the remaining state-law claims.” Booker v. Suffolk Cnty. Dep't of Corr., No. 23-CV-7732, 2023 WL 7663288, at *5 (E.D.N.Y. Nov. 15, 2023) (citation omitted); see also Kolari, 455 F.3d at 122 (2d Cir. 2006).

Here, the Court finds that the balance tips in the usual direction of declining jurisdiction. The remaining New York state law claims need not be decided here and are better resolved by a state tribunal. See Schmitt v. China XD Plastics Co., Ltd., No. 20CV6028, 2023 WL 6385763, at *11 (E.D.N.Y. Sept. 29, 2023) “([n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.”) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)). Thus, the Court recommends supplemental jurisdiction not be exercised as to the remaining state law claims.

IV. CONCLUSION

For the reasons set forth in this Report and Recommendation, the undersigned respectfully recommends that the Court dismiss the Complaint with prejudice and deny Plaintiffs leave to amend the complaint.⁹

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Brown. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 154-55 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995).

SO ORDERED:

FOOTNOTES

1.   Christian Killoran is an attorney who is admitted to practice in the Eastern District of New York. Christian represents his wife Terrie and daughter Shannon in this case. But he proceeds pro se on his own behalf. Though pleadings filed by pro se plaintiffs are generally held to less stringent standards, Mr. Killoran, as an experienced attorney, is not entitled to this deferential treatment. See, e.g., Killoran on behalf of Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2022 WL 866816, at *4 (E.D.N.Y. Mar. 22, 2022) (holding Mr. Killoran's pleadings to the “same standards as pleadings drafted by lawyers” even where he proceeded pro se).

3.   As of the date of issuance of this Report and Recommendation, Shannon is a freshman at College of Charleston. See ECF No. 25 (letter updating the Court regarding Shannon's status). Shannon currently participates in College of Charleston's club/intramural women's lacrosse program. Id.

4.   Since 2017, Mr. Killoran has filed at least twenty lawsuits in the Eastern District of New York arising from Aiden's education, resulting in a substantial record of published and unpublished decisions. See Killoran on behalf of Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4763, 2024 WL 813292 (E.D.N.Y. Feb. 27, 2024); Killoran on behalf of Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2023 WL 5532920 (E.D.N.Y. Aug. 28, 2023); Killoran on behalf of Killoran v. Westhampton Beach Sch. Dist., No. 22-CV-1951, 2023 WL 2760773 (E.D.N.Y. Mar. 31, 2023); Killoran v. Westhampton Beach Sch. Dist., No. 21-CV-3264, 2022 WL 4484630 (E.D.N.Y. Sept. 27, 2022); Killoran on behalf of Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-6663, 2022 WL 3309223 (E.D.N.Y. Aug. 10, 2022), aff'd, No. 22-1753, 2023 WL 4503274 (2d Cir. July 13, 2023); Killoran on behalf of A.K. v. Westhampton Beach Sch. Dist., No. 20-CV-4763, 2022 WL 954851 (E.D.N.Y. Mar. 30, 2022); A.K. v. Westhampton Beach Sch. Dist., No. 17-CV-866, 2021 WL 6776236 (E.D.N.Y. Dec. 22, 2021), aff'd, No. 22-204, 2023 WL 4503278 (2d Cir. July 13, 2023); Killoran on behalf of A.K. v. Westhampton Beach Sch. Dist., No. 19-CV-3298, 2021 WL 4776720 (E.D.N.Y. Oct. 11, 2021), aff'd, No. 21-2647, 2023 WL 4503151 (2d Cir. July 13, 2023); Killoran on behalf of A.K. v. Westhampton Beach Union Free Sch. Dist., No. 20-CV-269, 2021 WL 1220713 (E.D.N.Y. Mar. 31, 2021); A.K. v. Westhampton Beach Sch. Dist., No. 17-CV-0866, 2021 WL 621236 (E.D.N.Y. Jan. 6, 2021), report and recommendation adopted, 2021 WL 665277 (Jan. 25, 2021); Killoran on behalf of A.K. v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2020 WL 5424722 (E.D.N.Y. Sept. 10, 2020); Killoran on behalf of A.K. v. Westhampton Beach Sch. Dist., No. 19-CV-2418, 2020 WL 4504684 (E.D.N.Y. Aug. 5, 2020); Killoran v. Westhampton Beach UFSD, No. 19-CV-3298, 2020 WL 4740498 (E.D.N.Y. June 24, 2020), report and recommendation adopted, 2020 WL 4743189 July 27, 2020); Killoran v. Westhampton Beach Sch. Dist., No. 18-CV-3389, 2020 WL 1325572 (E.D.N.Y. Feb. 12, 2020), report and recommendation adopted, 2020 WL 1433647 (Mar. 11, 2020); A.K. v. Westhampton Beach Sch. Dist., No. 17-CV-0866, 2019 WL 4736969 (E.D.N.Y. Sept. 27, 2019).

5.   Most of Mr. Killoran's cases filed on behalf of Aiden were assigned to District Judge Joanna Seybert and Magistrate Judge Steve I. Locke. In June 2022, the already-filed cases were reassigned to the undersigned and all future cases were assigned to the undersigned as related. Only the final case filed on behalf of Aiden in April 2023 was assigned to Judge Brown.

6.   Plaintiffs plead their Civil Rights Act claim in both the Complaint and PAC, but they have agreed to drop this claim. See ECF No. 25. The Court therefore will not address this abandoned Civil Rights Act claim.

7.   The PAC only adds additional allegations. It does not revise any of the prior allegations made in the original Complaint. See generally ECF No. 23-1 (redlined version of PAC displaying proposed changes).

8.   The undersigned need not discuss all the points raised by the parties in their submissions. It is well-settled that “there is no requirement for a court to specifically address each and every argument raised by a party in papers filed with the Court.” Hallmark Licensing, LLC v. Dickens, Inc., No. 17-CV-2149, 2020 WL 6157007, at *7 (E.D.N.Y. Oct. 21, 2020) (quoting Miller v. Metro. Life Ins. Co., No. 17-CV-7284, 2018 WL 5993477, at *5 n.5 (S.D.N.Y. Nov. 15, 2018) (further citations omitted)). “By extension, neither is a court required to address each and every case cited by a party in support of its position.” Id.

9.   The Court finds that dismissal with prejudice is warranted because granting leave to Plaintiffs to amend their Complaint would be futile given that the Court cannot identify any additional amendments that could withstand dismissal. See Thomas v. Amazon.com Servs. LLC, No. 23-CV-01271, 2025 WL 253276, at *14 (E.D.N.Y. Jan. 21, 2025) (concluding that “granting further leave to amend would be futile because there is no indication that a valid claim might be stated as to those claims dismissed” (internal quotations omitted); see also Vasquez v. City of New York - Off. of Mayor, No. 22-CV-05068, 2024 WL 1348702, at *14-15 (E.D.N.Y. Mar. 30, 2024) (denying leave to amend after the court dismissed plaintiff's claim, as “[p]laintiff has pleaded his case exhaustively,” and “[n]one of [p]laintiff's proposed amendments would cure the various defects that have prevented the [c]ourt from reaching the merits of his claims in this case.”)).

LEE G. DUNST United States Magistrate Judge