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Smith v. Forest Manor, Inc.

United States District Court, N.D. Alabama, Western Division

April 20, 2017

FOREST MANOR, INC., Defendant.



         This case is before the court on Defendant's Motion to Dismiss (Doc. # 14) and Defendant's Motion to Strike (Doc. # 21). Plaintiff has responded to the motions. (Docs. # 18, 26). Defendant has filed a reply brief in support of its motion to dismiss. (Doc. # 20).

         I. Procedural History and Background

         Plaintiff's Complaint asserts that Defendant, a nursing home facility, violated Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (“ADA”). (See Doc. # 1 at ¶¶ 19-30). Plaintiff also raises state law claims of negligence/wantonness, breach of contract, and fraud against Defendant. (See Id. at ¶¶ 11-18, 31-34). Plaintiff is a resident of Defendant's nursing home who suffers from dementia and loss of mobility from a fractured hip and pelvis, among other physical and mental ailments. (Id. at ¶ 7).

         On December 18, 2015, one of Defendant's employees transported Plaintiff by wheelchair “in a manner that [was] much too fast for any conditions.” (Id. at ¶ 9). Plaintiff's wheelchair did not have a seat belt, foot rests, or other “fall prevention devices . . . for the accommodation of persons with the plaintiff's disabling conditions.” (Id.). Plaintiff alleges that her feet moved underneath the wheelchair because the wheelchair did not have features to hold her feet in place above the floor. (See Id. at ¶ 10). Plaintiff fell from the wheelchair and suffered unconsciousness, nasal fractures, head injuries, hand injuries, and facial injuries. (Id. at ¶¶ 9-10).

         On December 23, 2015, Defendant conducted a “falls meeting” about the incident. (Id. at ¶ 32). Defendant's employees reported that Plaintiff fell because she “abruptly stood up and fell forward.” (Id.). A written report averred that Plaintiff planted her feet on the ground and stood up before her fall. (Id. at ¶ 33). However, a video of the incident shows that that Plaintiff's feet dragged underneath the wheelchair and that she did not attempt to stand. (Id. at ¶ 34).

         In her complaint, Plaintiff alleges that Defendant receives funding from the Centers for Medicare and Medicaid Services. (Id. at ¶ 20). Plaintiff is disabled (or, as the statute references, handicapped) within the meaning of the Rehabilitation Act and is a qualified individual with a disability under the ADA. (Id. at ¶¶ 21, 27). Defendant allegedly violated Plaintiff's rights under the Rehabilitation Act by not providing her a wheelchair “equipped with fall-prevention devices.” (Id. at ¶ 23). Likewise, it violated Title III of the ADA by neglecting to provide transportation equipment to its disabled residents that would have made the nursing home fully accessible. (Id. at ¶¶ 28-30). Because Defendant provided “non-compliant transportation equipment” and failed to adequately train its employees, it discriminated against Plaintiff because of her disability. (Id. at ¶ 28). Finally, Plaintiff contends that Defendant's false account of the fall in its written notes constitutes actionable fraud. (Id. at ¶ 34).

         Defendant requests that the court dismiss the Rehabilitation Act, ADA, and fraud counts in the complaint. (Doc. # 14). Plaintiff responds that Defendant's arguments for dismissal require the court to consider factual disputes about the case. (Doc. # 18 at 2). To address the factual disputes she has identified, Plaintiff has attached several evidentiary exhibits to her response. (See Docs. # 18-1-18-5). Defendant contends that the court should strike the exhibits because they either (a) contain unauthenticated evidence or (b) present hearsay statements. (Doc. # 21). Plaintiff responds that she appropriately submitted the evidence because Defendant's motion to dismiss essentially disputes the facts alleged in the complaint. (See Doc. # 26 at 1). Plaintiff also claims that the motion to strike is premature because she cannot authenticate the submitted evidence until the discovery process begins. (Id. at 3).

         II. Standard of Review

         The court has broad discretion in reviewing a motion to strike. Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F.Supp.2d 1354, 1360 (S.D. Fla. 2009). Evidence submitted to support a motion can be challenged through a motion to strike, which is usually treated like a motion in limine. Morris v. Precoat Metals, 2013 WL 830868, at *2 (N.D. Ala. Mar. 4, 2013). Generally, motions to strike are disfavored by the courts. See Blake v. Batmasian, 2017 WL 743576, at *1 (S.D. Fla. Feb. 27, 2017). “Moreover, motions to strike are rarely granted absent a showing of prejudice.” Stephens v. Trust for Pub. Land, 479 F.Supp.2d 1341, 1346 (N.D.Ga. 2007).

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F.App'x 136, 138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

         III. Analysis of ...

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