Overcoming a Motion to Dismiss from a Nursing Home Owner Regarding Understaffing Allegations

Successfully Pleading Understaffing, Corporate Misconduct and Surviving a Motion to Dismiss from the Nursing Home Lawyer

A common allegation brought by our nursing home abuse attorneys is corporate malfeasance and understaffing facilities. We find that a common cancerous root of nursing home abuse and neglect is an under-budgeted, under-staffed nursing home.

As you can imagine, the nursing home defense attorneys fight to keep these allegations from getting to a jury. Defense lawyers will oftentimes file a Motion to Dismiss the nursing home negligence Complaint.

Below is an example of Plaintiff’s Response to a nursing home defendant’s attempts to dismiss a Complaint which alleged understaffing and corporate misconduct on behalf of the nursing home corporation.

PLAINTIFF’S RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT OR, IN THE ALTERNATIVE, MORE DEFINITE STATEMENT & MOTION TO STRIKE PARAGRAPHS 50-65 AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT

On December 18, 2019, Plaintiff, PLAINTIFF PR, as Personal Representative of the Estate of PLAINTIFF DECEDENT, filed a multi-count Amended Complaint against Defendants for wrongful death and alternatively, survival actions for nursing home negligence. On January 24, 2020, Defendants filed a Motion to Dismiss or, in the Alternative, Motion for More Definite Statement Directed to Plaintiff’s Amended Complaint. Additionally, Defendants also seek to strike Paragraphs 50-65. As explained below, Defendants’ arguments should fail, as it is clear that the allegations contained in the Amended Complaint, are neither 1) impermissible pleadings under Florida Rules of Civil Procedure 1.110(b) and 1.110(f) nor 2) inflammatory or conclusory as contemplated under Florida Rule of Civil Procedure 1.140(f).

I. FACTUAL BACKGROUND

This is a nursing home case where the Defendants’ negligence directly caused PLAINTIFF DECEDENT to develop bedsores, injuries and infections at NURSING HOME that caused her death. See Amended Complaint ¶ 66-71 (attached as “Exhibit A”).

It is well accepted that if a corporate parent company decides to intentionally under-budget or cut staff at a nursing home, they may be liable for harm caused to residents. Understaffing facilities in the name of making a profit is a regular business practice by many of the private equity owners of these skilled nursing facilities. However, Florida nursing home negligence law protects residents and allows injured victims to hold these corporations accountable for understaffing Florida facilities.

The tortious behavior related to understaffing and budgeting by the corporate parent company is clearly alleged in the Amended Complaint, and this understaffing and underbudgeting is clearly alleged to have caused Ms. PLAINTIFF’ injuries and death. See Amended Complaint ¶ 50-65, 76 (xvi), 80 (ii), 84 (ii), 88 (ii), 92 (xvi), 96 (ii), 100 (ii), and 104 (ii). The Defense’s arguments to dismiss this Amended Complaint, or strike allegations, should fail as they are contrary to Florida law.

a. A motion to dismiss may only be granted if certain stringent requirements are met

Under Florida law, courts are reluctant to grant motions to dismiss and will only do so if stringent requirements are met. “Complaints should not be dismissed for failure to state a cause of action unless the movant can establish beyond any doubt that the claimant could prove no set of facts whatever in support of his claim”. Greenfield v. Manor Care, Inc., 705 So.2d 926, 931 (Fla. 4th DCA 1998), appeal dismissed, 717 So.2d 534 (Fla. 1998); see also Wausau Insurance Company v. Haynes, 683 So.2d 1123, 1124-25 (Fla. 4th DCA 1996).

In ruling on motions to dismiss, the court must confine itself to allegations set forth within the four corners of the Amended Complaint and must accept all well-pled allegations of the Amended Complaint as true, and must draw all reasonable inferences in favor of the pleader. McKinney-Green, Inc. v. Davis, 606 So.2d 393, 394 (Fla. 1st DCA 1992); Snow v. Bryon, 580 So.2d 238, 240 (Fla. 1st DCA 1991). Plaintiff submits, for the reasons set forth below, that the Amended Complaint contains significant allegations of ultimate facts to support the causes of action against all Defendants. In particular, Plaintiff’s allegations are neither 1) impermissible pleadings under Florida Rules of Civil Procedure 1.110(b) and 1.110(f) nor 2) inflammatory or conclusory as contemplated under Florida Rule of Civil Procedure 1.140(f).

b. Plaintiff’s Amended Complaint is permissible under Florida Rule of Civil Procedure 1.110(b) and 1.110(f)

According to Florida Rule of Civil Procedure 1.110(b) (2014), a claim for relief should state: (1) a cause of action; (2) the court’s jurisdiction and (3) a plain statement of ultimate facts which gives rise to the relief sought. Defendants do not contend Plaintiff’s Amended Complaint fails to properly allege the court’s jurisdiction.

Defendants’ first contention is the Amended Complaint should be dismissed in its entirety on the grounds that Plaintiff “lumps” allegations against each Defendant together in a “shotgun style” so that each individual Defendant cannot ascertain what cause(s) of action or allegation(s) is/are being asserted against it. Defendants’ Memorandum of Law, pages 4-7. This argument is misguided. In support, the Defendant heavily relies on Pratus v. City of Naples, 807 So.2d 795, 796 (Fla. 2d DCA 2002). The Defendants confuse the factual background and holding of Pratus, which is distinguishable from the case at hand. In fact, Pratus explicitly supports Plaintiff’s position.

In Pratus, the Plaintiff sued the City of Naples, the Chief of Police and a police officer for a civil rights claim. The Plaintiff filed a complaint that “lack[ed] minimal organization and coherence.” Id. at 796. The Court ruled that the complaint failed to meet 1.110(b) because “in count one of the claim, all of the defendants were named; in count two, only Officer Valdario; in count three…all defendants were named.” Id. (emphasis added). The Court reasoned that the complaint could be fixed, stating “The Pratuses probably have at least three separate theories or causes of action; one against the City of Naples, one against the chief of police and one against the officer….each claim should be pleaded in a separate count instead of lumping all defendants together.” Id. at 797 (emphasis added).

In comparison, Plaintiff’s Amended Complaint in the case at hand does not group multiple Defendants together in one count. Instead, each count, whether for wrongful death damages or survival damages, is levied against a single, identifiable Defendant. See Amended Complaint ¶ 75-106. This gives each Defendant a chance to adequately respond to the Amended Complaint and formulate defenses. Defendant confuses Pratus, where multiple defendants are named in a single count, with Plaintiff’s Amended Complaint, where each count is addressed to a single defendant with the same allegations.

Defendants claim the Plaintiff’s Amended Complaint in the case at hand “lumps the allegations against each Defendant together” and realleges [the allegations] “at the beginning of each count.” Defendants’ Motion to Dismiss, page 4. That is the issue in Pratus, where a single count contained multiple Defendants. In Plaintiff’s Amended Complaint, it clearly alleges specific allegations against each individual Defendant.

If, for example, Defendant CORPORATE OWNER, LLC (referred to as “NURSING HOME MANAGEMENT” in the Amended Complaint), did not have any impact on the treatment of Ms. PLAINTIFF through its management of the subject facility, through decisions on budgeting, staffing, policy decision or other impactful management decisions, and thus is claiming that it did not violate Ms. PLAINTIFF’ Chapter 400 rights, it can deny such allegations. See e.g. Amended Complaint ¶ 79-82.

To further illustrate, if Defendant INDIVIDUAL OWNER (or any other named defendant) did not have enough staff to meet the needs of the residents at NURSING HOME, or did not ignore understaffing complaints by staff, family members and resident at the subject facility, he can deny such allegations. See e.g. Amended Complaint ¶ 53. In fact, the Pratus court suggested the exact method of pleading used by the Plaintiff in the case at hand to fix the flaws in the Pratus Amended Complaint. “We would also point out that rule 1.130(b) allows statements in a pleading to ‘be adopted by reference in a different part of the same pleading, in another pleading, or in any motion,’ thus permitting the pleader to identify concisely factual allegations common to multiple counts and theories.” Pratus, 807 So.2d. at 797 (emphasis added).

Furthermore, Defendants’ contention is the Amended Complaint fails to comply with Rule 1.110(f) because paragraphs 41-74 fail “to delineate which facts are specific to which Defendant”; thus, fails to state a cause of action. Defendant heavily relies on Aspsoft, a Fifth District decision involving a breach of contract action. According to Florida Rule of Civil Procedure 1.110(f), claims founded on separate transactions must be alleged in separate counts. As explained above, Plaintiff has properly alleged separate causes of action against each Defendant in this case.

Each count of the pleading stands on its own without reference to allegations made in another count. Furthermore, the allegations are not so vague or ambiguous as to require a more definite statement. Therefore, as drafted, there is nothing barring or restricting each individual Defendant from admitting or denying the general allegations, facts giving rise to the cause of action, wrongful death damages, and survival damages throughout Paragraphs 41-74. Defendants’ contention that Plaintiff’s Amended Complaint should be dismissed because Plaintiff has failed to state a cause of action under 1.110(b) and 1.110(f), or that a more definite statement is required, should fail.

c. Plaintiff’s allegations are not inflammatory, conclusory or unsupported by evidence as contemplated under Florida Rule of Civil Procedure 1.140(f)

Defendants’ last contention is that Paragraphs 50-65 of Plaintiff’s Amended Complaint should stricken. Defendants’ Motion, pages 7-8. Paragraphs 50-65 further outline the Defendants’ specific acts, omissions and misconduct which resulted in harm and injury to the decedent, PLAINTIFF DECEDENT. Of import, Defendants fail to cite to any rules or caselaw to support their position. Furthermore, Defendants do not contend Plaintiff’s allegations are “redundant, immaterial, impertinent or scandalous” as contemplated in Florida Rule of Civil 1.140(f). Instead, Defendants claim Paragraphs 50-65 of the Amended Complaint fail “to set forth the ultimate or even basic facts”, and said allegations are simply inflammatory, conclusory and unsupported by evidence.

Assuming arguendo Defendants are moving to strike the allegations under 1.140(f), it is well settled a motion to strike a matter “should only be granted if the material is wholly irrelevant, can have no bearing on the equities and no influence on the decision.” Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1134 (Fla. 4th DCA 2003).

“Moreover, because a motion to strike only tests the legal sufficiency of a claim, it is reversible error for a court to grant a motion to strike where the pleading presents a bona fide issue of fact that may be supported by evidence. See Gonzalez v. NAFH Nat’l Bank, 93 So.3d 1054, 1057 (Fla. 3d DCA 2012). A claim should not be stricken simply because the judge believes that its proponent will ultimately be unable to produce sufficient evidence to support it. See id. To the contrary, the trial court must resolve all doubts in favor of the pleading and keep in mind that striking a pleading is an extreme measure that is disfavored. Upland, 910 So.2d at 944.” – Parrish Yarnell, P.A. v. Spruce River Ventures, LLC, 180 So.3d 1198, 1200 (Fla. 2d DCA 2015).

A proponent of a motion to strike pleadings must prove, by clear and convincing evidence, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense. On appeal, where there is no showing that a pleading was plain fiction or undoubtedly false, the pleading must be reinstated. See Roach at 574, (Fla. 4th DCA 2012).

i. Paragraphs 50-65 are sufficiently plead and wholly relevant

The Defendants first claim that these paragraphs should be stricken because “Plaintiff has failed to set forth the ultimate or even basic facts” prohibiting the Defendants “a fair opportunity to prepare the necessary evidence for the defense of this case.” Defendants’ Motion, pages 7-8. This argument is misguided. Paragraphs 50-65 are well-plead, incredibly relevant, and are clearly connected to the individual counts in the Amended Complaint. In the present case, Ms. PLAINTIFF suffered a massive Stage 4 pressure ulcer while a resident of Defendants’ facility that resulted in corresponding infection and treatment. See Amended Complaint ¶ 66-71.

The Amended Complaint specifically alleges Defendants purposefully withheld funds from Ms. PLAINTIFF’ care which “unreasonably increased the risk that PLAINTIFF DECEDENT would suffer harm as a result because there would not be enough staff members” . . . “required for her safety, protection, well-being and rehabilitation.” Amended Complaint ¶ 63. This understaffing and underbudgeting is specifically alleged in each count against each named Defendant to be a cause of Ms. PLAINTIFF’ injuries and death. See Amended Complaint ¶ 76 (xvi), 80 (ii), 84 (ii), 88 (ii), 92 (xvi), 96 (ii), 100 (ii), and 104 (ii). Therefore, it is clear the allegations are well-plead and incredibly relevant to the elements of Plaintiff’s claim against each Defendant.

ii. Paragraphs 50-65 are not inflammatory or conclusory, and evidence of allegations is not required at this early stage in the proceeding

The Defendants also claim that these paragraphs should be stricken because they are inflammatory, conclusory and are unsupported by evidence or supporting documents. This argument is also misguided. Defendants confuse the necessary standard for pleading, as evidence does not have to be presented in the Amended Complaint.

The family’s firsthand experience, staff complaints to family, and the nature of the Stage 4 bedsore, and infection, upon information and belief, the facility was tremendously understaffed and underfunded. In further support of the allegations in paragraphs 50-65, Plaintiff plans to receive from Medicare the average Resource Utilization Group score for each resident during the year of Ms. PLAINTIFF’ residency and two years prior, which will show the stated acuity levels for payment from Medicare. Plaintiff will then receive the nursing staff hours in discovery for the year of Ms. PLAINTIFF’ residency and two years prior, which will show how many Certified Nursing Assistants, Licensed Practical Nurses and Registered Nurses were on duty. Finally, Plaintiff will take the acuity levels that were reported to Medicare in order to calculate Medicare’s expected staffing according to facility acuity. Once Plaintiff has that information, it can then show exactly how understaffed the facility was during the year of Ms. PLAINTIFF’ residency, and how this understaffing has been recurrent over the past 3 years.

As stated above, Florida Rules of Civil Procedure Rule 1.110(b) (2014) provides any pleading which sets forth a claim for relief shall contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” The distinction between evidentiary facts (which are not required to be pled), and ultimate facts (which are to be pled) is often overlooked in motions to dismiss. Those motions, therefore, often simply announce the conclusion of the author – that the Amended Complaint should be dismissed – without any supporting analysis.

The Court’s conclusion as to the pleading, however, must necessarily consider the distinction between ultimate facts and evidentiary facts. In this regard the analysis set forth in Beckler v. Hoffman, 550 So.2d 68 (Fla. 5th DCA), is helpful. As therein stated:

“To allege that A murdered B is to allege a conclusion; to allege that A killed B deliberately and intentionally without legal justification or excuse, is to allege ultimate facts; to allege that at a certain time and place A hated B and lay in wait for B and aimed and fired a pistol at B and that the bullet fired from A’s pistol struck B and caused B to die, is to allege evidence.”

When judged in light of this example, Defendants’ contention is without merit as it asks that the Amended Complaint setting forth ultimate facts, as required by the rules of procedure, be dismissed on the basis that it doesn’t set forth enough evidence or supporting documentation at the motion to dismiss stage. This is wholly improper. Although the evidentiary facts are certainly discoverable, the rules provide that they are not required to be pled in the Amended Complaint; thus, the Defendants’ argument to strike Paragraphs 50-65 should be denied.

d. In the Alternative, if the Court Finds the Allegations Legally Insufficient, Plaintiff Should be Granted the Opportunity to Amend its Complaint.

Although the allegations are more than sufficient, assuming arguendo that the allegations in the Amended Complaint are found to be legally insufficient, Plaintiff should be granted the opportunity to amend its Amended Complaint. In Frugoli v. Winn-Dixie Stores, Inc., the court held that “[a]lthough plaintiff alleged bare facts in his Amended Complaint sufficient to withstand motion to dismiss without leave to amend his various counts, his Amended Complaint did not contain sufficient ultimate facts to which defendants could adequately respond,” but “[t]wo of four counts of plaintiffs Amended Complaint stated a cause of action against defendant sufficient to withstand a motion to dismiss with prejudice, and thus, case would be remanded to allow plaintiff to amend his Amended Complaint to conform to proper pleading practice.” Frugoli v. Winn-Dixie Stores, Inc., 464 So. 2d 1292 (Fla. 1st DCA 1985).

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