Heather Isringhausen Gvillo Jan. 26, 2015, 11:53am

A Swansea elementary school and its administrators have filed a motion to dismiss a lawsuit alleging a student was bullied without the school taking action, calling the claims “outrageous and untrue.”

This comes after the plaintiffs’ counsel urged the student’s mother to voluntarily dismiss the case.

Permissa Acoff, individually and on behalf of her minor son, filed the Sept. 30 lawsuit against Scott Harres, Jeff Burkett and Wolf Branch School District 113 Board of Education.

Acoff claims her son was picked on and called names while attending Wolf Branch Elementary during the 2013-2014 school year.  She claims that after talking to his teachers and Principal Burkett, she was told they would monitor the situation and talk to the parents of the students responsible. However, Acoff claims the bullying continued and no disciplinary action was taken.

Later, Acoff alleges her son was slapped in the head by one of the alleged bullies. She says another student hit him with spit balls and called him a racial slur. She claims her son has been hurt, has had difficulty sleeping at night and his education has suffered as a result of the bullying, the suit states.

Attorney Justin L. Mason of St. Louis originally represented Acoff and her son, but filed a motion to withdraw on Oct. 28.

He stated that he previously urged Acoff to dismiss her claims, explaining that he did not believe the plaintiffs had a plausible cause and the sole purpose of filing the complaint was to preserve statute.

However, on Oct. 17, Acoff contacted her attorneys and asked them not to dismiss the case and requested Mason to continue representing her and her son in the matter.

Mason explained that he believes Acoff had renewed interest in pursuing the case “from the media in this matter.” However, he said he does not wish to continue as counsel in the case and asked to withdraw the firm’s appearance.

“Counsel and Mrs. Acoff clearly have reached a point in which there has been a breakdown in communication and have irreconcilable differences as to the merits and validity of the current matter,” the motion states.

Following Mason’s motion to withdraw, the defendants responded by filing an amended motion for sanctions on Dec. 5. They argue that Acoff should be sanctioned for knowingly filing a “completely frivolous” complaint.

On Oct. 31, the defendants filed a motion to dismiss claiming immunity under the Tort Immunity Act.

“Plaintiffs’ complaint does not establish that any of the individual defendants’ alleged conduct was performed outside the course of their employment so as to remove their immunity from suit in tort and allow them to be sued in their individual capacity,” the defendants state. “In fact, plaintiffs’ complaint admits that the individual defendants were within the scope of their employment.”

They also argue that the complaint fails to explain exactly what the defendants failed to do that constituted a breach of contract or that they even knew to take action, the motion states.

Acoff is accused of failing to factually allege a claim for intentional infliction of emotional distress.

“The alleged indifference, while extremely untrue, is far from extreme and outrageous conduct required for the tort of intentional infliction of emotional distress,” the defendants argue.

Circuit Judge Robert LeChien is presiding over the case

Shawn M. McLain and Barney R. Mundorf of Guin Mundorf LLC in Collinsville represents the defendants.

St. Clair County Circuit Court case number 14-L-688

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