United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
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).
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 ¶¶
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).
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).
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).
Standard of Review
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).
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
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.
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.
Analysis of ...