WIGGIN & NOURIE, P.A., MANCHESTER, NEW HAMPSHIRE

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

 |

Debra Franchi, Individually and | 

as Parent and Guardian of CF | 

Plaintiffs | 

| 

v. | Civil Action No. 1:08-cv-395-JL 

| 

New Hampton School | 

Defendant | 

 |

SECOND AMENDED COMPLAINT

THE PARTIES

1. The Plaintiff, Debra Franchi, is a citizen of the State of New Hampshire. She 

resides in Wonalancet, New Hampshire. She is the mother and guardian of her daughter, CF, the 

minor Plaintiff. 

2. The Defendant, New Hampton School, is a private, boarding school. It is 

registered with the New Hampshire Secretary of State as a nonprofit corporation. It maintains a 

place of business at 34 Doctor Childs Road, New Hampton, New Hampshire 03256. 

JURISDICTION AND VENUE

3. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 

1343. 

4. This Court has supplemental jurisdiction over the state law claims pursuant to 28 

U.S.C. § 1367. 

5. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because Plaintiffs 

and Defendants are located in the District of New Hampshire. 

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FACTS

6. CF is a young, teenage girl. She was born in 1993, and was 14 at the time of the 

events set forth in this Complaint. 

7. As is the case with so many adolescent girls in this country, CF suffers from an 

eating disorder. With the support of her family and medical supervision, she manages her 

disability. 

8. CF’s mother, wanting the best education for her daughter, looked into enrolling 

CF at New Hampton School (“NHS”), a private boarding school. Cognizant of her daughter’s 

disability, CF’s mother met with NHS’s Director of Admissions and informed her of CF’s eating 

disorder. The Director assured CF’s mother that CF’s eating disorder would not be a problem so 

long as CF was responsible regarding her health. To make certain that NHS had full knowledge 

of CF’s condition, CF’s mother gave NHS’s Director of Counseling permission to speak with 

CF’s therapist. 

9. CF’s mother was reassured that NHS could adequately educate and provide for 

her daughter, not only based upon the assurances given by NHS staff, but also by literature NHS 

provided to her. An informational handout from NHS titled, “Counseling services available” 

specifically identifies eating disorders as one of the problems that NHS is able to address. It 

states: 

“The counselors at New Hampton School are trained and experienced 

helpers. We know at times life can be difficult, if not overwhelming. It is 

in those hard times you may need support. That’s why we are here . . . to 

listen, understand, and offer support to you as you work towards 

confronting and resolving your problems.” 

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This same counseling handout, in speaking about medical/emotional issues, also makes clear that 

a leave of absence, not discharge, may be appropriate for “behaviors putting the student or 

community at risk.” 

10. CF started her freshman year at NHS in the fall of 2007. She had never attended a 

boarding school, nor had she experienced long separations from her family. As one would 

expect, CF was anxious at first as she assimilated into this new environment. Because she 

suffered from an eating disorder, her anxiety made it more difficult for her to manage her weight, 

but with the continued support and encouragement of her parents, CF slowly adjusted to 

boarding school life. In fact during the fall trimester, NHS recognized CF for “excellent 

academic performance,” earning her a place on the High Honor Roll. 

11. Out of an abundance of caution, CF’s mother, in an effort to identify any decrease 

in her daughter’s weight long before it became a health risk, asked NHS to weigh her daughter 

each week and report the results to her. During the first trimester, NHS reported that CF’s 

weight fluctuated between a baseline of 120 pounds and 124 pounds. As a deterrent to CF’s 

weight loss, NHS would not allow CF to participate in dance classes. 

12. On Friday, November 16, 2007, CF’s mother had CF evaluated by the Cambridge 

Eating Disorder Center (“CEDC”) in Cambridge, MA. With the Thanksgiving break 

approaching, CF’s mother believed that her daughter could benefit by using this time for 

intensive medical treatment at an outpatient program. NHS’s Director of Counseling also 

thought that the two-week Thanksgiving break would be a good time for CF to start treatment 

because it would not interfere with CF’s studies. 

13. NHS’s Director of Counseling also told CF’s mother that, if CF would benefit 

from longer treatment, she could take a medical leave of absence for a couple weeks. Since there 

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were only a couple weeks of school between the Thanksgiving break and the Christmas break, 

CF would miss minimal school and would not be responsible for the work missed because it was 

a medical leave. 

14. CF started treatment at the CEDC over the Thanksgiving break. She attended 

CEDC’s outpatient treatment for 10 days. The CEDC diagnosed her with an eating disorder, not 

specified. Thereafter, CF’s mother and CF’s Case Manager at the CEDC, discussed the fact that 

due to the school’s calendar, CF could benefit from a more intensive inpatient treatment 

approach without missing significant time from school. 

15. In accordance with the CEDC’s recommendation, CF’s mother enrolled her in 

Walden Behavioral Care’s Eating Disorder Program. CF received 10 days of inpatient treatment 

at Walden. 

16. Following CF’s discharge from Walden, she returned to the CEDC’s outpatient 

program for another 10 days. When CF completed treatment, her CEDC Case Manager 

recommended that she have an outpatient treatment team in place to support her through her 

transition back to NHS as well as her continued recovery. The Case Manager provided these 

recommendations to NHS in a letter dated December 28, 2007. In a letter dated January 16, 

2008, to the Franchis, NHS set forth their acceptance of the CEDC’s recommendations stating, 

“We understand the transition back will be challenging and something she [CF] needs to work on 

daily. We will do everything we can to support her and the recommendations coming from the 

CEDC.” 

17. The CEDC discharged CF around the Christmas and New Year holidays. CF’s 

mother could not get the support in place that the CEDC recommended prior to CF returning to 

NHS because the practitioners were on vacation. CF returned to NHS on January 7, 2008, 

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although her first appointment with a Nutritionist would not be until January 22, 2008, and her 

Therapist until January 23, 2008. 

18. NHS’s Director of Counseling, upon CF’s return to NHS, told CF’s mother that if 

CF required additional treatment, that she would not be allowed to take another leave of absence. 

This contradicts NHS’s Student Life Handbook, which places no limit on the number of medical 

leaves a student may take and does not restrict the length of a medical leave. NHS also told CF’s 

mother that CF could not miss any classes to go to doctor appointments. This placed the 

additional burden on CF’s mother of limiting her search for a primary care physician to the 

Concord area so that the facility would be commutable to NHS. As a result of NHS’s 

constriction, CF’s mother could not secure a primary care physician for CF prior to her return to 

NHS. 

19. CF returned to NHS on Monday night, January 7, 2008, with classes scheduled to 

begin Tuesday morning. NHS’s Director of Counseling told CF the day that she returned to 

NHS that she was responsible for the missed assignments during her medical leave of absence, 

despite the fact that NHS’s Director of Counseling told CF’s mother in November prior to CF’s 

leave that CF would not be responsible for the material. 

20. NHS’s arbitrary decision to require CF to make-up these missed assignments 

caused CF to feel anxious and overwhelmed her first week back at NHS. CF’s mother, in 

response to her daughters anxiousness, called CF’s Case Manager at the CEDC. The CEDC 

Case Manager told CF’s mother that her daughter had made positive mental changes in the two 

weeks since she had been out of their program: CF decided to take control of her life, committed 

to staying at NHS, and decided to be healthy. The Case Manager said that the fact that CF 

articulated these feelings was a very important positive step in CF’s recovery. Out of an 

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abundance of caution, the Case Manager suggested putting CF’s name on the waiting list for a 

residential treatment program at Klarmen’s Eating Disorder Center at McLean Hospital 

(“Klarmen”). This was solely a precautionary measure in case the need arose. 

21. In accordance with the CEDC Case Manager’s suggestion, CF’s mother contacted 

Klarmen to put her daughter on the waiting list. The Klarmen Intake Coordinator, however, 

echoed what the CEDC Case Manger had told CF’s mother. Klarmen’s Intake Coordinator said 

that CF was making positive mental steps in her recovery and that she should be given the 

opportunity to make positive behavior changes to turn things around on her own. She did not 

feel that CF was a candidate for inpatient treatment at Klarmen. Nonetheless, at the insistence of 

CF’s mother, she reluctantly put CF on the waiting list in case CF’s condition deteriorated. 

22. NHS’s Director of Counseling called CF’s mother on January 21, 2008, to inform 

her that CF’s weight had decreased over the last two weeks by 3.25 pounds. CF’s mother told 

NHS’s Director of Counseling that CF’s first appointment with a nutritionist was on the 22nd 

and that her first appointment with a therapist was on the 23rd. She expressed her hope that 

NHS would give CF the opportunity to allow her outpatient support team to work with her since 

NHS had agreed to support the recommendation of the CEDC Case Manager. The CEDC Case 

Manager recommended that these medical providers be in place to support CF through the 

recovery process and help CF reach her ideal body weight. The Case Manager did not expect CF 

to do this alone while transitioning back to school. 

23. On January 24, 2008, NHS advised CF’s mother that her daughter had lost 1.25 

pounds and weighed 114.5 pounds. CF’s mother contacted Klarmen to ascertain CF’s position 

on the waiting list and to have them reassess CF’s current situation to see whether she qualified 

for admission. Klarmen’s Intake Coordinator stated that CF was at 93% of her ideal body weight 

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and not in need of urgent care. She said that an individual is considered medically anorexic and 

in need of care when she is below 85% of her ideal body weight. Although Klarmen’s Intake 

Coordinator agreed to keep CF’s name on the waiting list, she told CF’s mother that if a bed 

became available, it would not be given to CF under her current circumstances because CF was 

demonstrating positive behavioral changes and slowly moving in the direction of recovery. 

24. NHS’s Dean of Students and NHS’s Director of Counseling called CF’s mother at 

3:45 in the afternoon on January 24, 2008. NHS told her that NHS was discharging CF and 

instructed CF’s mother to immediately pick up her daughter. NHS refused to discuss the matter 

with CF’s mother and the fact that the therapists had told her that CF was on the road to recovery 

mentally and that CF’s weight was only one piece of the puzzle. 

25. NHS discharged CF from the academic program and the boarding program. NHS 

refused to consider an alternative arrangement whereby CF could become a day student. NHS’s 

Dean of Students told CF’s mother that a discussion would not do any good because the decision 

had been made. 

26. NHS’s discharge of CF is at odds with NHS’s Student Life Handbook. According 

to the handbook, the only situation that warrants immediate dismissal of a student is when “a 

situation arises that potentially threatens personal safety or the safety of the community.” At the 

time that NHS unilaterally and without notice discharged CF, none of CF’s doctors, therapists or 

medical providers, believed that she was a danger to self or others. In fact, the CEDC Case 

Manager whom NHS agreed to support, stated that CF was not a danger to herself or in medical 

or psychiatric crisis when NHS discharged her on January 24, 2008. CF’s nutrition therapist 

stated that CF did not present a danger to herself or others at the time NHS discharged her. CF’s 

therapist at Portsmouth and Exeter Mental Health Associates, Inc. also stated that CF was not a 

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danger to self and that CF was open and committed to the therapeutic process. CF’s primary 

medical provider at White Mountain Community Health Center stated that CF had been seen at 

regular intervals for blood work and weight checks and that lab values were all within normal 

range and that CF was not medically at risk for hospitalization in an inpatient facility. 

27. NHS failed to obtain a single evaluation from a medical doctor or psychiatrist as 

to CF’s mental state and whether she posed a danger to self or others. In fact, not only did no 

medical doctor or psychiatrist indicate that CF posed a danger to self or others, but most 

indicated the opposite, i.e., that CF was on the road to recovery. 

28. CF is 5’7” tall. The CEDC estimated that CF’s ideal weight based on her height 

was between 123 and 125 pounds. According to NHS, at the time that it discharged CF, she 

weighed 114.5 pounds. This places CF at 93% of her ideal weight. Klarmen advised that 

because CF is at 93% of her ideal weight, she is not medically at risk and that they would not 

enroll her in their program. Klarmen indicated that CF was on the path to recovery and only 

needed outpatient support. 

29. From the time that CF returned to school on January 7, 2008, through the time 

that NHS discharged her on January 24, 2008, according to NHS, CF’s ranged from 114.5 

pounds to 119 pounds. 

30. CF’s mother paid approximately $ 49,000 so that her daughter could attend NHS. 

After NHS discharged CF, it refused to refund most of the tuition and fees paid. 

31. CF suffered emotionally as a result of NHS actions. At the time that NHS 

discharged her, she was on the path to recovery, maturing, and developing strength. Her 

unexpected discharge caused her embarrassment and self-doubt. It became an obstacle to her 

recovery that she had to overcome. She was forced to adjust to a new school mid-year. 

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Beginning school mid-way through a year is far more stressful than beginning in the fall with 

one’s peers. Studies are underway, peer relationships are formed, and the adolescent who arrives 

in the middle is simply a stranger without support. NHS stole CF’s support structure and forced 

her into a situation of isolation. 

LEGAL THEORIES OF LIABILITY

COUNT I

(Violation of the Americans with Disabilities Act of 1990, 42 USC § 12101 et seq.) 

32. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

33. The Americans with Disabilities Act (“ADA”) defines the term "disability" as 

“(A) a physical or mental impairment that substantially limits one or more of the major life 

activities of such individual; (B) a record of such an impairment; or (C) being regarded as having 

such impairment.” 42 USC §12102. The ADA provides that “[n]o individual shall be 

discriminated against on the basis of disability in the full and equal enjoyment of the goods, 

services, facilities, privileges, advantages, or accommodations of any place of public 

accommodation by any person who owns, leases (or leases to), or operates a place of public 

accommodation.” 42 USC §12182(a). 

34. Defendant NHS receives federal education funding. NHS, although a private 

school, is considered a place of public accommodation. 42 USC § 12181(7)(J). 

35. Defendant despite receiving full tuition payment, discharged the minor Plaintiff 

solely and exclusively because she suffered from an eating disorder. Defendant discriminated 

against the minor Plaintiff in violation of the ADA because it refused to allow the minor Plaintiff 

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to attend classes and refused to allow the minor Plaintiff to live on campus either because of the 

Plaintiff’s disability or because the Defendant regarded the minor Plaintiff as suffering such an 

impairment. 

36. As a result of Defendant’s violation of the ADA, the Plaintiffs were damaged 

emotionally and financially. Plaintiffs are entitled to attorney’s fees and costs. Due to 

Defendant’s actions and the aggravating circumstances, Plaintiffs are entitled to enhanced 

compensatory damages. 

COUNT II

(Violation of The Rehabilitation Act of 1973, 29 USC § 701, et seq. ) 

37. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

38. Section 504 of the Rehabilitation Act states (in part): “No otherwise qualified 

individual with a disability in the United States, as defined in section 705(20) of this title, shall, 

solely by reason of her or his disability, be excluded from the participation in, be denied the 

benefits of, or be subjected to discrimination under any program or activity receiving Federal 

financial assistance or under any program or activity conducted by any Executive agency or by 

the United States Postal Service.” 29 USC § 794. 

39. Defendant NHS receives federal education funding. 

40. Defendant, despite receiving full tuition payment, discharged the minor Plaintiff 

solely and exclusively because she suffered from an eating disorder. Defendant discriminated 

against the minor Plaintiff in violation of the Rehabilitation Act because it refused to allow the 

minor Plaintiff to attend classes and refused to allow the minor Plaintiff to live on campus either 

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because of the Plaintiff’s disability or because the Defendant regarded the minor Plaintiff as 

suffering such an impairment. 

41. As a result of Defendant’s violation of the Rehabilitation Act, the Plaintiffs were 

damaged emotionally and financially. Plaintiffs are entitled to attorney’s fees and costs. Due to 

Defendant’s actions and the aggravating circumstances, Plaintiffs are entitled to enhanced 

compensatory damages. 

COUNT IV

Violation of The Federal Fair Housing Act, 42 U.S.C. 3601 

48. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

49. The Federal Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by 

direct providers of housing because of a disability. 

50. Defendant, despite receiving full tuition payment, discharged the minor Plaintiff 

solely and exclusively because she suffered from an eating disorder. Defendant either because of 

the minor Plaintiff’s disability or because it regarded the Plaintiff as suffering such an 

impairment refused to allow the minor Plaintiff to live on campus in violation of Federal law, 

which prohibits denying housing accommodations on either the basis of a disability or on the 

basis of being regarded as suffering such an impairment. 

51. As a result of Defendant’s violation of the Federal Fair Housing Act, the Plaintiffs 

were damaged emotionally and financially. Plaintiffs are entitled to attorney’s fees and costs. 

Due to Defendant’s actions and the aggravating circumstances, Plaintiffs are entitled to enhanced 

compensatory damages. 

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COUNT VII

(Breach of Contract)

60. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

61. Plaintiff informed Defendant of the minor Plaintiff’s eating disorder prior to the 

minor Plaintiff commencing her studies at NHS. NHS provided an informational handout to 

Plaintiffs titled, “Counseling services available” which indicates that NHS is able to address 

eating disorders. 

62. Plaintiff paid the tuition and all fees associated with educating her daughter at 

NHS for the school year 2007-2008. 

63. Defendant despite receiving full tuition payment, discharged the minor Plaintiff 

solely and exclusively because she suffered from an eating disorder. 

64. Defendant breached its contract with the Plaintiff when it discharged the minor 

Plaintiff due to her eating disorder. 

65. Defendant refused to refund all monies paid by the Plaintiff to educate her 

daughter at NHS. 

66. As a result of Defendant ’s breach of contract, the Plaintiffs were damaged 

emotionally and financially. Plaintiffs are entitled to attorney’s fees and costs. Due to 

Defendant’s actions and the aggravating circumstances, Plaintiffs are entitled to enhanced 

compensatory damages. 

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COUNT IX

(Negligence) 

73. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

74. Defendant had a duty to abide by the rules and policies set out in the Defendant’s 

literature and handouts. 

75. Defendant breached its duty to enforce the rules and policies contained in the 

material. 

76. Defendant knew or should have known that its agents were not adhering to the 

Defendant’s policies and rules by, among other things, allowing a hostile environment to exist in 

the educational setting that failed to accommodate disabled students. 

77. As a direct and proximate result of Defendant’s breach, the Plaintiffs suffered 

emotional and financial damages. 

78. To the extent that Defendants’ acts were intentional and done in bad faith, 

Plaintiffs are entitled to attorney’s fees and costs. Due to Defendants’ actions and the 

aggravating circumstances, Plaintiffs are entitled to enhanced compensatory damages. 

COUNT X

(Negligence) 

79. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

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80. Defendant had a duty to implement and adhere to all federal and state regulations 

established for the operation of an educational facility receiving federal funding. 

81. Defendant breached these duties by, among other things, failing to keep and 

accommodate disabled students. 

82. As a direct and proximate result of Defendant’s breach, the Plaintiffs suffered 

emotional and financial damages. 

83. To the extent that Defendant’s acts were intentional and done in bad faith, 

Plaintiff is entitled to attorney’s fees and costs. Due to Defendant’s actions and the aggravating 

circumstances, Plaintiff is entitled to enhanced compensatory damages. 

COUNT XI

(Negligent Infliction of Emotional Distress)

84. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

85. Defendant had a duty to the minor Plaintiff to refrain from negligently engaging 

in conduct that it knew or should have known would cause emotional distress to the minor 

Plaintiff. 

86. Defendant engaged in a negligent course of conduct that included, but is not 

limited to, negligently failing to accommodate the minor Plaintiff’s disability, negligently 

monitoring the Plaintiff’s health, negligently discharging the minor Plaintiff, negligently 

reporting her condition, etc. 

87. Defendant’s negligent acts unreasonably subjected the minor Plaintiff to a 

foreseeable risk of emotional harm. 

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88. As a direct and proximate result of Defendant’s negligence, the Plaintiffs suffered 

emotional and financial damages. To the extent that Defendant’s acts were intentional and done 

in bad faith, Plaintiffs are entitled to attorney’s fees and costs. 

89. Due to Defendant’s actions and the aggravating circumstances, Plaintiffs are 

entitled to enhanced compensatory damages. 

COUNT XIII

(Respondeat Superior/Vicarious Liability/Agency) 

94. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

95. To the extent that any of the negligent acts alleged were carried out by employees, 

servants or agents of NHS, Plaintiffs claim that under the New Hampshire doctrine of respondeat 

superior, Defendant NHS is vicariously liable for any and all such negligent acts giving rise to 

legal fault under any of the theories alleged. 

96. As a result of the actions of Defendant’s agents and/or employees, Plaintiffs have 

been damaged. To the extent that Defendant’s acts were intentional and done in bad faith, 

Plaintiffs are entitled to attorney’s fees and costs. Due to Defendant’s actions and the 

aggravating circumstances, Plaintiffs are entitled to enhanced compensatory damages. 

DAMAGES AND INJURIES

104. All factual allegations contained in the preceding paragraphs of this Declaration 

are repeated and incorporated by reference into the following Count wherever necessary and 

appropriate to set forth a cause of action herein. 

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105. Plaintiff CF Franchi, as a result of Defendant’s actions and conduct, suffered 

severe mental and emotional harm, including but not limited to nightmares, physical sickness, 

fear, and other emotional harm, sustained loss of the enjoyment of life, sustained past, present 

and future physical and emotional pain, suffering and distress, suffered indignities and 

humiliation, and suffered other legally recognized compensatory damages. She also suffered a 

disruption in her education, as well as the damage associated with being forced to leave her 

friends and school and complete her high school education at a different institution. 

106. Plaintiff Debra Franchi also suffered mental and emotional harm, and further 

suffered economic losses associated with the Defendant’s refusal to refund payment of tuition. 

107. In addition to said damages, Plaintiffs claim interest and costs, including taxable 

costs, as well as attorney’s fees and costs – generally and as described in specific counts in this 

declaration. 

108. Further, Defendant’s conduct was wanton, malicious and oppressive and 

undertaken with ill will, hatred, hostile or evil intent and purpose. 

109. As a result, the nature of Defendant’s conduct as described above entitles 

Plaintiffs to enhanced compensatory damages for their injuries under New Hampshire law. 

110. Accordingly, the Plaintiffs demand judgment against the Defendant in an amount 

within the minimum and maximum jurisdictional limits of this Court, together with costs, 

interest, and attorney’s fees. 

DEMAND FOR JURY TRIAL

A. Plaintiffs request a trial by a jury; 

B. Plaintiffs also request that this matter be placed on a one-year trial track; 

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C. Plaintiffs further request that this matter be scheduled for a Court-ordered 

mediation session at an appropriate time during the pendency of the case; and 

D. For other such relief as may be just. 

Date: January 7, 2010 Respectfully Submitted, 

 Debra Franchi, Individually and 

as Parent and Guardian of CF Franchi

By Their Attorneys 

Wiggin & Nourie, P.A. 

 By: /s/ Donna-Marie Cote 

 Peter E. Hutchins, Esq. (NH Bar ID #1231) 

 Donna Marie Cote, Esq. (NH Bar ID #14543) 

 670 No. Commercial St., Suite 305 

 P.O. Box 808 

 Manchester, NH 03105-0808 

 Phone: (603) 629-4566 

 Fax: (603) 623-8442 

01108062.DOC

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