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Libby v. Park Marion and Vernon Streets Operating Company, LLC

United States District Court, D. Massachusetts

October 6, 2017

WILLIAM LIBBY, Personal Representative of the ESTATE OF SARAH THERESA LIBBY, Plaintiff,
v.
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

          JUDITH GAIL DEIN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         The 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 she resided.

         Suit 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).

         BHCC 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 court.

         As 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.

         II. STATEMENT OF FACTS

         “Leave 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.

         Events Surrounding Ms. Libby's Death

         BHCC 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.

         Ms. 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.).

         Causes ...


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