ORDER
This case presents several questions about the duties of a private secondary school toward its students. Defendant New Hampton School (“NHS”) moves to dismiss certain claims against it by plaintiff Debra Franchi on the ground that they fail to state a cause of action.
See
Fed.R.Civ.P. 12(b)(6). Franchi alleges that NHS expelled her daughter because she suffered from an eating disorder. Following the submission of the parties’ memoranda, and a telephone conference with counsel, the court ordered Franchi to file a supplemental memorandum showing that her complaint stated a cause of action for certain additional claims (which NHS had not moved to dismiss) in light of this court’s recent decision in
Brodeur v. Claremont School District,
This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). After oral argument, the NHS’s motion to dismiss is granted in part and deniеd in part, and certain of Franchi’s other claims are also dismissed for failure to state a cause of action. While Franchi has adequately alleged that CF suffered from a disability so as to bring her within *255 the protection of various federal statutes, she has not alleged that CF suffered discrimination on the basis of her sex, nor has she stated claims for breach of fiduciary duty, intentional infliction of emotional distress, or violation of the New Hampshire Consumer Protection Act.
I. Applicable legal standard
To state a claim for relief, a complaint must set forth “[fjactual allegations [that are] enough to raise a right to relief above the speculative level, on the assumption that all of the allegations in the complaint are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly,
Furthermore, a court may act on its own initiative in questioning whether a complaint should be dismissed for failing to state a claim, provided that the plaintiff gets notice of the potential dismissal and an opportunity to respond to it.
See, e.g., Martinez-Rivera v. Sanchez Ramos,
II. Background
The following allegations of Franchi’s first amended complaint are accepted as true for purposes of the motion to dismiss.
See, e.g., Gray v. Evercore Restructuring L.L.C.,
During her Thanksgiving break from classes at NHS, CF began a 10-day course of outpatient treatment for her eating disorder from a clinic unaffiliated with the school. Based on that clime’s recommendation, CF then attended a 10-day inpatient program at another clinic, followed by another 10-day outpatient progrаm at the first clinic which concluded “around the Christmas and New Year holidays.” Franchi had discussed CF’s treatment with the NHS director of counseling, who said that CF could take a medical leave of absence during the “couple weeks of school between the Thanksgiving break and the Christmas break.”
CF’s case manager at her outpatient clinic “recommended that she have an outpatient team in place to support her through her transition back to NHS.” In response, the school told Franchi, “We will do everything we can to support [CF] and the recommendations coming from” the clinic. But Franchi was unable to “get the support in place” prior to CF’s return to school in early January 2008; her appointments with her nutritionist and therapist would not take place until late that month.
About two weeks after CF’s return to NHS, the school informed Franchi that CF’s weight had dropped by 3]4 pounds. *256 Two days later, following the scheduled appointments with the nutritionist and therapist, NHS notified Franchi that CF’s weight had fallen by another 1% pounds, to 114/& pounds. 1 That same day, two school officials called Franchi and “told her that NHS was discharging CF and instructed [Franchi] to immediately pick up her daughter,” refusing to discuss the matter further. NHS also “refused to consider an alternative program whereby CF could become a day student,” discharging CF from both “the academic program and the boarding program.” And NHS also refused to refund “most of’ the $49,000 in tuition and fees that Franchi paid for CF to attend NHS.
Franchi claims that NHS’s decision was “at odds with [its] Student Life Handbook,” which states that “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.’ ” Franchi points out that various professionals who treated CF soon after her expulsion concluded that she in fact posed no danger to herself or others.
So Franchi commenced this action in this court. Her amended complaint asserts eleven numbered counts against NHS:
• violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182 (count 1);
• violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (count 2);
• violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (count 3);
• violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604 (count 4);
• breach of contract (count 7);
• breach of fiduciary duty (count 8);
• negligence in failing “to abide by the rules and policies set out in [NHS] literature and handouts” (count 9);
• negligence in failing “to implement and adhere to all federal and state regulations established for the operation of an educational facility receiving federal funding” (count 10);
• negligent infliction of emotional distress (count 11);
• intentional infliction of emotional distress (count 12);
• “respondeat superior/vicarious liability/agency” (count 13); and
• violation of the New Hampshirе Consumer Protection Act, N.H.Rev.Stat. Ann. § 358-A (count 14). 2
Franchi seeks, inter alia, damages on her own behalf for “mental and emotional harm, and further economic losses associated with [NHS’s] refusal to refund payment of tuition,” and on CF’s behalf for “severe mental and emotional harm ... as well as the damage with being forced to leave her friends and school and complete her high school education at a different institution.”
III. Analysis
NHS has moved to dismiss all of Fran-chi’s federal law claims — those alleging vi *257 olations of the ADA, the Rehabilitation Act, Title IX, and the FHA — as well as her state-law claims for breach of fiduciary duty and violation of the New Hampshire Consumer Protection Act, arguing that they fail to state a cause of action. In addition, this court has ordered Franchi to show cause why certain of her state-law claims — those alleging breach of contract, negligent infliсtion of emotional distress by Franchi in her individual capacity, and intentional infliction of emotional distress— ought not to be dismissed for the same reason, and why her other negligence claims should not be stricken as duplicative of her breach of contract and federal statutory claims. 3 As explained fully infra, counts 3, 8, 11 (insofar as it is alleged on behalf of Franchi individually) and 12 are dismissed, while the remaining claims will proceed through litigation in the normal course.
A. The federal claims
NHS argues that Franchi has failed to allege that CF suffered from the “disability” or “handicap” necessary to bring her within the protections of the ADA, the Rehabilitation Act, and the FHA. NHS further argues that the FHA does not apply because the school’s dormitories are not “dwellings,” and that Franchi has failed to state a claim under Title IX because she has not alleged that CF suffered discrimination “on the basis of sex.” The court will consider these arguments in turn.
1. “Disability”/“Handicap”
Title III of the ADA, in relevant part, provides that “[n]o person shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, or accommodations of any place of public accommodation by any person who owns, leases ... or operates [it].” 42 U.S.C. § 12182(a). The Rehabilitation Act, also in relevant part, provides that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The FHA, again in relevant part, makes it unlawful “[t]o discriminate in the sale or rental, or otherwise to make unavailable or deny, a dwelling to any buyer or renter becаuse of a handicap of,” among others, “that buyer or renter.” 42 U.S.C. § 3604(f)(1).
All these statutes use the same definition of “disability” or “handicap”: “(A) a physical or mental impairment that substantially limits one or more major life activities ...; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1) (formatting and parenthetical *258 omitted); id. § 3602(h) (defining “handicap” nearly identically); 29 U.S.C. § 705(20)(B) (defining “individual with a disability” under 29 U.S.C. § 794(a) as “any person who has a disability as defined in” 42 U.S.C. § 12102). NHS argues that CF’s eating disorder, as described in the amended complaint, does not fit the statutory definition of “disability” because it does not “substantially limit one or more major life activities.”
As Franchi points out, the ADA was recently amended to, among other things, specify that “major life activities include, but are not limited to ... eating.” ADA Amendments Act of 2008 (“ADAAA”), Pub.L. 110-325, sec. 3(a), 122 Stat. 3553, 3554 (codified at 42 U.S.C. § 12102(2)(A) (2005 & supp.2008)). 4 But NHS argues that, while eating is a “major life activity,” Franchi has failed to allege that it was “substantially limited” in CF’s case by her eating disorder. This argument depends on too stringent a view of the “substantially limits” standard.
The Supreme Court had previously construed the phrase “substantially limits one or more major life activities” in the ADA to mean “prevents or severely restricts the individual from doing [those] activities.”
Toyota Motor Mfg., Ky., Inc. v. Williams,
To this end, the ADAAA inserted “Rules of construction” that the term “disability in [the ADA] shall be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]” and “ ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the” ADAAA.
Id.
sec. 4(a),
NHS’s argument that Franchi has not adequately pled that CF’s eating disorder “substantially limited” her eating so as to constitute a disability under the ADA is inconsistent with this Congressional mandate. The amended complaint states that, after spending six straight weeks in outpatient and inpatient eating disorder clinics from late November 2007 to early January 2008, CF nevertheless lost nearly five pounds in the subsequent 16-day period, dropping her weight to 93 percent of its ideal total. These allegations state a claim that CF’s eating disorder substantially lim
*259
ited her eating, particularly under the “broad” construction dictated by the ADAAA.
See, e.g., Rohr v. Salt River Project Agric. Imp. & Power Dist.,
In Rohr, in fact, the court rejected an argument similar to NHS’s here: that, because the amended complaint alleges that CF “manages her disability” and was doing so at the time NHS discharged her, the eating disorder could not have been “substantially limiting” as a matter of law. Rejecting the view that the plaintiffs diabetes was not a disability because it required only that “he stays on his medicines and watches what and when he eats,” Rohr observed that the plaintiff “alleged substantial limitations on his eating in spite of his medicine and insulin,” including the need to monitor all aspects of his food intake closely. Id. at 860. That could amount to a substantial limitation, the court explained, because “[s]traying from a diet for more than one or two meals is not a cause for medical concern for most people, and skipping a meal, or eating a large one, does not expose them” to health risks. Id.
The same is true of CF’s alleged condition, which required a careful watch over her food intake to protect against potentially dangerous weight loss.
See also Lawson v. CSX Transp., Inc.,
While the amended complaint could have spelled out the limiting effect more clearly, the court of appeals has instructed — in another case decided prior to the ADAAA — that a successful ADA claim does not require “excruciating details as to how the plaintiffs capabilities have been affected by the impairment,” even at the summary judgment stage.
Gillen v. Fal-lon Ambulance Serv., Inc.,
CF’s success in controlling her eating disorder, as alleged in the amended complaint, may well be relevant to the ultimate question of whether it substantially limited her eating — but that ultimate question is not yet ready for an answer. Indeed, as
*260
NHS candidly acknowledges, all of the cases it cites in support of its argument for dismissal of Franchi’s ADA claim “engaged in a factual inquiry as to whether the evidence before the court supported the claim that the conditions alleged ‘substantially limited major life activities.’ ” That kind of inquiry cannot be conducted on the basis of the amended complaint alone which, as just explained, alleges “enough factual matter (taken as true) to suggest” the plaintiffs right to relief under the ADA.
Bell Atl.,
2. “Dwelling”
NHS also argues that Franchi has no valid FHA claim because the school’s dormitories are not a “dwelling” subject to the statute. The FHA defines “dwelling” as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. § 3602(b). At first blush, this definition would appear to exclude school dormitories, which ordinarily do not house “families,” but the FHA instructs that “ ‘[fjamily’ includes a single individual.’ ” 42 U.S.C. § 3602(c). Because a boarding school dormitory is occupied as a residence by one or more individuals, then, it fits the statutory definition of dwelling.
In line with this analysis, a handful of courts have ruled that a schoоl dormitory is in fact a “dwelling” subject to the FHA.
See United States v. Mass. Indus. Fin. Agency,
Instead, NHS argues that a regulation promulgated by the Department of Housing and Urban Development contains an “elaboration” on the statutory definition of “family” that “clearly excludes a secondary school.” The regulation, however, actually defines “familial status” as “one or more individuals (who have not attained the age of 18 years) being domiciled with” either a “[a] parent or other person having legal custody” or that person’s designee. 24 C.F.R. § 100.20 (2009) (formatting omitted). “Familial status,” of course, is another prohibited basis of discrimination undеr the FHA, 42 U.S.C. § 3604(b), so there is no reason to believe HUD’s definition of that term also serves as a definition of “family” in the way NHS suggests. Indeed, § 100.20 contains the same definition of “dwelling” as that contained in the FHA itself. 5
*261 NHS also argues that, because “one’s ability to live in housing associated with an educational institution is necessarily dependent upon one’s entitlement to attend [it],” calling dormitories “dwellings” under the FHA could interfere with an institution’s educational mission by, for example, forcing a single-sex boarding school to open its doors to members of the opposite sex. This is a valid point, but if the FHA can be read to exclude school dormitories from its scope, that reading cannot depend on its definition of “dwellings” in the way NHS urges. NHS has not challenged Franchi’s FHA claim on any other basis, though, so its motion to dismiss that claim must be denied.
3. Title IX
NHS is correct that Franchi has not statеd a claim under Title IX, which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” with a number of exceptions not relevant here. 20 U.S.C. § 1681(a). Franchi does not allege that NHS excluded CF from participation in its programs “on the basis of sex,” but on the basis of her eating disorder. “Discrimination on the basis of sex is the sine qua non of a Title IX ... case, and a failure to plead that element is fatal.”
Frazier v. Fairhaven Sch. Comm.,
Franchi argues that she has in fact alleged discrimination on the basis of CF’s sex on the theory that “eating disorders disproportionately impact adolescent females.” While “Title IX, like other anti-discrimination schemes, permits an inference that а significant gender-based statistical disparity may indicate the existence of discrimination,”
Cohen v. Brown Univ.,
To the contrary, Franchi claims that NHS actually communicated a policy of attempting to assist students with eating disorders, but deviated from that policy in CF’s case. “Where [a defendant] targets a single plaintiff ... there is simply no basis for a disparate impact claim.”
Bramble v. Am. Postal Workers Union,
B. The state-law claims
1. Breach of fiduciary duty
In moving to dismiss Franchi’s claim for breach of fiduciary duty, NHS argues that no fiduciary relationship existed between it and CF as a matter of law. Franchi’s argument to the contrary is based on the New Hampshire Supreme
*262
Court’s decision in
Schneider v. Plymouth State College,
Predicting the New Hampshire Supreme Court’s course on an undecided issue of law requires “an informed prophecy of what [it] would do in the same situation, seeking guidance in analogous state court decisions, persuasive adjudications by courts of sister states, learned treatises, and public pоlicy considerations identified in state decisional law.”
Walton v. Nalco Chem. Co.,
In
Schneider,
a jury awarded a plaintiff $150,000 in compensatory and enhanced damages on claims for violation of Title IX and breach of fiduciary duty against her former college.
In affirming the verdict on the fiduciary duty claim,
7
the New Hampshire Supreme Court noted that a fiduciary relationship “ ‘may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.’ ”
*263
The court also made clear, however, that its “conclusion that a fiduciary relationship existed between the defendant ] and the plaintiff does not rest on the in loco paren-tis doctrine.”
Id.
at 463,
As this court observed in
Brodeur,
the New Hampshire Supreme Court in
Schneider
thus drew a distinction between the
fiduciary duty
that a
post-secondary
school owes its students to protect them from sexual harassment by faculty, and the
duty of care
that
a primary or secondary school
owes its students.
Rather than tying the claimed duty to a “unique relationship,” Franchi argues that a fiduciary duty arises any time “a plaintiff puts a special trust or reliance upon an institution,” as she claims to have done on CF’s behalf in enrolling her at NHS despite her eating disorder. While this court acknowledges that
Schneider
linked the existence of a fiduciary duty to the plaintiffs “special confidence” in the defendant,
Indeed, Franchi has not pointed to any authority extending the fiduciary duty recognized in
Schneider
beyond the “unique relationship” identified in that case, and this court is not aware of any. To the contrary, courts, including this one, have declined to do so.
See Evans v. Taco Bell Corp.,
In line with these authorities, this court rules that, even if the allegations of Fran-chi’s amended complaint suggest that she placed “a special trust or reliance” in NHS on CF’s behalf, that was insufficient to give rise to a fiduciary duty. Though NHS, like any other secondary school, owes its students a duty to use reasonable care to protect them, this court predicts *265 that the New Hampshire Supreme Court would not extend its holding in Schneider to elevate that duty to a fiduciary one under the circumstances alleged here. NHS’s motion to dismiss Franchi’s claim for breach of fiduciary duty is granted.
2. Violation of the Consumer Protection Act
NHS also moves to dismiss Fran-chi’s claim against it under the New Hampshire Consumer Protection Act. The Act provides that “[i]t shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” N.H.Rev. Stat. Ann. § 358-A:2. NHS argues that, first, the relationship between a school and its students does not fit within the “trade or commerce” governed by the Act and, second, the amended complaint fails to allege anything aрproaching the “unfair or deceptive act[s] or practice[s]” prohibited by the Act.
NHS’s first argument is based on
Brzica v. Trustees of Dartmouth College,
While the Consumer Protection Act lists several categories of unfair or deceptive acts or practices, N.H.Rev.Stat. Ann. § 358-A:2, I-XIV, Franchi does not attempt to fit NHS’s alleged actions into any of those categories, which would not appear to accommodate NHS’s alleged behavior. That is not the end of the matter, though, because the Act outlaws conduct “includfing], but not limited to” that listed in the categories; thus, other conduct may amount to unfair or deceptive acts or practices, provided it is “of the same type as proscribed by the enumerated categories.”
New Hampshire v. Moran,
NHS’s alleged conduct — which the amended complaint specifies as “making misrepresentations as to [the school’s] ability and willingness to educate [CF]”— does not meet this standard. The only statements by NHS about its “ability and willingness to educate [CF]” which the amended complaint identifies are generalized assurances, e.g., “CF’s eating disorder would not be a problem as long as CF was responsible regarding her health”; that NHS counselors “are here ... to listen, understand, and offer support to you as you work towards confronting and resolving your problems,” including eating disor
*266
ders; and that “[w]e will do everything we can to support [CF] and the reсommendations coming from” her outpatient clinic. As this court has previously noted, these kinds of vague statements cannot support a consumer protection claim.
See Private Jet Servs. Group, Inc. v. Sky King, Inc., 2006
DNH
116, 13-14, 2006 WL
2864057;
Evans,
And, assuming that they could, and assuming that NHS dishonored them by discharging CF as alleged, broken promises alone do not rise to the level of rascality where successful Consumer Protection Act claims dwell.
11
“An ordinary breach of contract claim does not present an occasion for the remedies under the Consumer Protection Act.”
Barrows, 141
N.H. at 390,
3. Infliction of emotional distress
As discussed supra, this court ordered Franchi to show, with reference to its Brodeur decision “and any other relevant authority, how her first amended complaint states a claim for ... negligent infliction of emotional distress by Deborah Franchi in her individual capacity, and intentional infliction of emotional distress” (numbering omitted). Franchi submitted a memorandum in response to that order, but it fails to show that the amended complaint states either of those causes of action.
First, as this court noted in
Brodeur,
a parent can recover in negligence for the emotional distress of injury to her child under New Hampshire law only if that distress is “ ‘directly attributable to the emotional impact of [the parent’s] observation or contemporaneous sensory perception’ of the defendant’s conduct.”
Second, the amended complaint fails to state a claim for intentional infliction of emotional distress on behalf of either Franchi or CF. As an initial matter, the amended complaint seeks recovery under this theory on behalf of “the minor Plaintiff’ only, not Franchi. Her supplemental memorandum nevertheless argues a claim for intentional infliction of distress on her own part, but, even treating that as a further amendment to the complaint, the claim cannot succeed. Nor, for that matter, can such a claim on behalf of CF.
Liability for intentional infliction of emotional distress follows only from “ ‘extreme or outrageous conduct,’. ” which the New Hampshire Supreme Court has defined as conduct “ ‘ “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.” ’ ”
Brodeur,
Indeed, in
Mikell,
the Nеw Hampshire Supreme Court upheld the dismissal of an intentional infliction of emotional distress claim against a teacher who “misused her position of authority over [a student] by making a false report of misconduct in an effort to affect his disciplinary record and eventually expel him,”
4. The other state-law claims
While the court also ordered Franchi to explain how her amended complaint stated a contract cause of action, NHS has candidly acknowledged that, unlike Brodeur, the contract claim arises out of more than simply the student handbook; indeed, at oral argument, NHS made reference to an actual contract between it and Franchi, and stated that this was “clearly” a breach of contract case (though not conceding, of course, that any contract was in fact breached). So that claim will not be dismissed. The court also ordered Franchi to show why her negligence claims, which allege violations of NHS’s duties under the ADA, the Rehabilitation Act, and the parties’ contract, are not duplicative of her statutory and contract claims; while the court remains concerned that the claims completely overlap, it will not strike the negligence counts at this point, leaving consolidation of Franchi’s theories till the summary judgment or final pretrial stage, if necessary.
III. Conclusion
This court has observed that “scatter-shot pleading is disfavored and counterproductive.”
Marier v. Town of Allens-town,
SO ORDERED.
Notes
. According to the outpatient clinic that evaluated CF in November 2007, her "ideal weight based on her height was between 123 and 125 pounds.” According to the intake coordinator at another clinic where Franchi tried to place CF in January 2008, though, CF’s weight loss that month placed her at only "93% of her ideal body weight and not in need of urgent care,” which is not necessary until a patient reaches 85% of her ideal weight.
. Franchi has voluntarily dismissed counts 5 and 6.
. While this court recognizes that “[a]s a general matter, sua sponte dismissals are strong medicine, and should be dispensed sparingly,”
Martinez-Rivera,
. The ADAAA made the same chаnge to the definition of "disability” in the Rehabilitation Act. Pub.L. 110-325, sec. 7(2),
. While the clear language of § 100.20 makes further inquiry unnecessary to determine its meaning,
see Textron Inc. v. Comm'r,
. At oral argument, Franchi requested leave to amend her complaint to allege such a practice, but is unclear what the good-faith basis of that allegation would be, at least at this stage. Should discovery turn up evidence of such a practice, of course, Franchi may seek leave to amend at that point, and the court will decide that motion according to the usual standards.
. The plaintiff conceded error in the Superior Court's jury instructions on the Title IX claim, but argued that remand, rather than judgment in the college’s favor, was the appropriate remedy.
. The most obvious example may be the doctor-patient relationship, where the patient no doubt places "special trust or reliance” in the doctor, but the duty to use reasonable care under the circumstances — rather than a fiduciary duty — governs.
See, e.g., Smith v. Cote,
. Most courts have treated the relationship between a college or a university and one of its students as essentially contractual in nature. "That the relationship between a university and its students has a strong, albeit flexible, contractual flavor is an idea pretty well-accepted in modern case law.”
Dinu v. Pres. & Fellows of Harvard Coll.,
. This court’s own research uncovered one case denying summary judgment against a student on her claim for breach of fiduciary duty arising out of her college’s failure to accommodate her disabilities during a study abroad program, reasoning that the student had "reposed growing trust and confidence” in the college as it promptly resolved previous "accessibility problems that she encountered on the campus.”
Bird v. Lewis & Clark Coll.,
. The same reasoning applies to NHS’s alleged misstatements about its "ability and willingness to comply with state and federal law” — leaving aside that the amended complaint fails to identify any statements to that effect.
. The only case on which Franchi relies is
Snow v. American Morgan Horse Ass’n,
. It should be noted that, at oral argument, Franchi conceded that, but for the breach of contract claim, "all other counts belong to the minor,” CF.
. Document no. 7.