United States District Court, D. Massachusetts
WILLIAM LIBBY, Personal Representative of the ESTATE OF SARAH THERESA LIBBY, Plaintiff,
PARK, MARION AND VERNON STREETS OPERATING COMPANY, LLC, d/b/a BROOKLINE HEALTH CARE CENTER, Defendant.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTIONS TO AMEND TO ADD NEW PARTY AND TO REMAND
GAIL DEIN, UNITED STATES MAGISTRATE JUDGE
plaintiff, William Libby, in his capacity as the Personal
Representative of the Estate of Sarah Theresa Libby
(“Ms. Libby”), brought this negligence action
against Park, Marion and Vernon Streets Operating Company,
LLC d/b/a Brookline Health Care Center (“BHCC”),
and John Doe Physicians and Jane Doe Nurses. As alleged in
the complaint, as a result of the defendants' negligence,
Ms. Libby choked to death when she was left unsupervised to
eat in the dayroom of the assisted living facility in which
was originally filed in Norfolk Superior Court on or about
February 27, 2017, and the complaint was served on BHCC on or
about April 14, 2017. (Docket No. 1 at ¶¶ 1, 2). A
First Amended Complaint dropping some corporate defendants,
but still naming John Doe Physicians and Jane Doe Nurses as
defendants, was filed on or about May 2, 2017. (Id.
at ¶ 2; Docket No. 1 at Ex. 5). BHCC removed the action
to this court on May 12, 2017, alleging that this court has
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) on the
basis of diversity of citizenship between the parties, and an
amount in controversy in excess of $75, 000. (Docket No. 1).
has moved to dismiss the John Doe and Jane Doe defendants.
The plaintiff does not oppose that motion, and it will be
allowed. (See Docket No. 25). The matter is
presently before the court on plaintiff's “Motion
to Amend Complaint to Add New Party.” (Docket No. 24).
By this motion, the plaintiff is seeking to add the Director
of Nursing at BHCC, Altagrace Metayer, as a defendant. The
addition of Ms. Metayer would defeat diversity jurisdiction.
Consequently, the plaintiff has also brought a “Motion
to Remand” this matter to state court. (Docket No. 31).
BHCC opposes both motions on the grounds that the proposed
Second Amended Complaint (Docket No. 24-1)
(“SAC”) fails to state a claim against Ms.
Metayer, and that, as a result, diversity jurisdiction still
exists and there is no basis to remand this action to state
detailed herein, the complaint does not state a claim against
Ms. Metayer. Therefore, the motion to amend the complaint to
add a party (Docket No. 24) and the motion to remand (Docket
No. 31) are DENIED WITHOUT PREJUDICE. There being no
opposition, defendant's “Motion to Dismiss
‘John Doe Physicians' and ‘Jane Doe
Nurses'” (Docket No. 25) is ALLOWED.
STATEMENT OF FACTS
to amend under [Fed. R. Civ. P.] 15 is freely given when
justice so requires absent an adequate basis to deny
amendment such as futility, bad faith, undue delay or a
dilatory motive, ” Transwitch Corp. v. Galazar
Networks, Inc., 377 F.Supp.2d 284, 290 (D. Mass. 2005)
(internal quotations omitted). In the instant case, BHCC
opposes the motion to amend the complaint on the grounds that
the proposed SAC fails to state a claim against Ms. Metayer
and is “frivolous” and “a clear attempt to
destroy diversity and remand this matter back to state
court.” (Def. Opp. (Docket No. 27) at ¶¶ 2,
3). In evaluating the sufficiency of the allegations of a
complaint in the context of such a claim of futility, the
court is guided by “the liberal criteria of Federal
Rule of Civil Procedure 12(b)(6).” Transwich
Corp., 377 F.Supp.2d at 290. “The facts, and
reasonable inferences therefrom, in the [complaint] are
considered true[.]” Id. at 294. Applying this
standard, the relevant facts are as follows.
Surrounding Ms. Libby's Death
operates a senior care facility located at 99 Park Street,
Brookline, Massachusetts, known as Brookline Health Care
Center. (SAC ¶ 2). In the SAC, plaintiff alleges that
Altagrace Metayer, who resides in Massachusetts, “was
the Director of Nursing at Brookline Health Care Center at
the time at issue[.]” (Id. ¶ 4). This is
the only express reference to Ms. Metayer in the SAC.
Libby was admitted to BHCC on or about April 7, 2012 for
skilled nursing care and rehabilitation after a
hospitalization for seizures and falls, and she remained
there until her death on May 7, 2014. (Id.
¶¶ 9-10). Throughout this period, Ms. Libby was
deemed to be at risk for falls. (E.g., id.
¶¶ 18, 20, 23, 26, 35). Her medical records also
indicated that she was on a soft diet, customized for her
diabetes, and at variable times during her residency at the
facility required continual supervision while eating since
she was at risk for aspiration. (E.g., id.
¶¶ 14-17, 22, 24-25, 30, 33-34, 36-40). As further
alleged in the complaint:
41. On the morning of May 7, 2014, a resident in the day room
alerted the nurses to help Ms. Libby who was holding her
chest and in distress. A nurse's note later in the day
said that Ms. Libby was seen holding her neck and tapping on
her chest; and that she became unresponsive as she was being
assessed by staff.
(Id. ¶ 41). When ambulance personnel attempted
to insert an endoctracheal tube, they “had to remove a
silver dollar sized piece of food before they were able to
successfully intubate her.” (Id. ¶ 42).
Ms. Libby was pronounced dead upon her arrival at Beth Israel
Hospital. (Id. ¶ 43). The cause of death was
“respiratory distress, secondary to aspiration.”
(Id.). An autopsy revealed “a large volume of
undigested food in her stomach and evidence of recent
aspiration in her left lung.” (Id.).