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Wolff-Bolton v. Manor Care-Tice Valley CA, LLC

United States District Court, N.D. California

July 6, 2017

JUDY WOLFF-BOLTON, et al., Plaintiffs,
v.
MANOR CARE-TICE VALLEY CA, LLC, et al., Defendants.

          ORDER RE: PLAINTIFFS' MOTION TO REMAND REMOVED ACTION AND DEFENDANTS' MOTION TO STRIKE RE: DKT. NOS. 18, 20

          JACQUELINE SCOTT CORLEY United States Magistrate Judge.

         Plaintiffs allege violation of patient's rights, elder abuse/neglect, negligence, wrongful death, and survivorship. Defendants HCR ManorCare et al. removed the action to Federal Court on the basis of diversity jurisdiction. (Dkt. No. 1.) Plaintiffs subsequently filed an amended complaint for damages, which added two non-diverse defendants to the suit. (Dkt. No. 15 (First Amended Complaint (“FAC”)).) Plaintiffs now move to remand the removed action to state court on the grounds that the Court lacks subject matter jurisdiction because the parties are no longer diverse.[1] (Dkt. No. 18.) In response, the Defendants move to strike the Plaintiffs' first amended complaint because Plaintiffs failed to request leave to amend the complaint despite adding a diversity-destroying defendant. (Dkt. No. 20.) After carefully considering the papers filed by the parties, Plaintiff's motion to remand is GRANTED and Defendants' motion to strike is DENIED.[2]

         FAC ALLEGATIONS

         Plaintiffs are the survivors of decedent, Lynn Wolff (“Decedent”), a resident at ManorCare Health Services-Tice Valley (the “Facility”) from approximately September 20, 2016 through October 12, 2016. (FAC ¶ 2, 10.) The defendants “owned, leased, licensed, operated, administered, managed, directed, and/or controlled and are “managing agents” of [the Facility].” (Id. ¶ 3.) The FAC names as defendants: (1) ManorCare-Tice Valley, CA, LLC, an LLC with its principal place of business in Ohio, but registered to do business in California (Id. ¶ 4); (2) ManorCare Health Services-Tice Valley, the actual facility, located in Walnut Creek, CA (Id. ¶ 3); (3) HCR ManorCare Inc., a Delaware corporation with its principal place of business in Ohio (Id. ¶ 5); (4) Heartland Employment Services LLC, an LLC with its principal place of business in Ohio, which employs the Facility employees, including Rodger Hogan (Id. ¶ 6); (5) John Gallick, the Western Regional Director of Operations for HCR/ManorCare and a citizen of California (Id. ¶ 7); and (6) Rodger Hogan, the Administrator of the Facility and a citizen of California. (Id. ¶ 8.)

         Decedent was an elder who had undergone surgery just prior to her admission to the Facility, so defendants knew she was at risk for falls. (Id. ¶ 16.) Despite this knowledge, the defendants “did not take adequate steps to prevents falls, did not put fall risk interventions including a bed and/or chair alarm into place, did not properly assess or adequately care for [Decedent], and did not keep her safe and free from injury at [the Facility].” (Id. ¶ 16.)

         On September 22, 2016, Decedent had her first unwitnessed, documented fall at the Facility while getting into bed without assistance. (Id. ¶ 17.) Decedent did not have a “meaningful and informed assessment for injury” after the fall and no changes were made to Decedent's care; however, the Facility began giving Decedent Oxycodone regularly for pain, which caused her to be “sleepy, confused, and made it difficult for her to get out of bed.” (Id. ¶ 17.)

         Decedent had another documented fall at the Facility on October 2, 2016, but this time it was witnessed by a nurse passing by Decedent's room. (Id. ¶ 18.) Again, Decedent did not have a proper assessment following the fall. (Id. ¶ 18.) On October 5, 2016, Decedent complained about pain in her right hip, but Decedent again did not receive a proper assessment and Decedent's physician was not notified. (Id. ¶ 18.)

         Five days later, Decedent had a third undocumented fall, which was unwitnessed, and again, her physician did not perform a proper assessment. (Id. ¶ 19.) Still no changes or precautions were taken to protect Decedent. (Id. ¶ 19.)

         After the three falls and almost no changes to Decedent's care, Decedent was discharged from the Facility on October 12, 2016. (Id. ¶ 20.) While at home, Decedent was primarily bed bound, but complained that her hip and leg were in pain. (Id. ¶ 20.) Decedent received an x-ray, which revealed that she had “suffered a right periprosthetic fracture and dislocation, and she underwent a right hip resection anthroplasty.” (Id. ¶ 20.) Days later, Decedent died; her death was the result of injuries she suffered while she was a resident at the Facility. (Id. ¶ 20.) Defendants failed to notify Decedent's family of her condition, which caused them emotional distress and injury. (Id. ¶ 27.)

         Each of the defendants “had responsibility for meeting the basic needs of [Decedent], including her safety, nutrition, hydration, hygiene and medical care.” (Dkt. No. 26.) Specifically, John Gallick and Rodger Hogan are responsible for “mak[ing] and approv[ing] key decisions concerning [the Facility]'s day-to-day operations.” (Id. ¶ 8.) At the time Decedent was admitted to the Facility, “[d]efendants knew that according to their plan to increase profits at the expense of residents such as [Decedent], the operation of [the Facility] was neither designed, administered, nor funded in a manner reasonably necessary to provide adequate care, oversight and integration of [Decedent] into [the Facility].” (Id. ¶ 25.)

         Defendants were previously sued as a result of injuries to another resident of the Facility, in addition to being cited for violating regulations set by the California Department of Public Health. (Id. ¶ 3.) Defendant Rodger Hogan “signed plans of correction” in regards to the citations. (Id. ¶ 31.)

         PROCEDURAL HISTORY

         On March 21, 2017, Plaintiffs filed this action in state court alleging violation of patient's rights, elder abuse/neglect, negligence, wrongful death, and survivorship. The following month, the then-named defendants removed the action to Federal Court. (Dkt. No. 1.) On May 4, 2017, Defendants filed a motion to strike, along with a motion to dismiss. (Dkt. Nos. 8, 10.) On May 16, 2017, within 21 days of the filing of the Defendants' motions to dismiss, Plaintiffs filed an amended complaint which added two non-diverse defendants to the suit: Mr. Gallick and Mr. Hogan. The FAC also “added facts detailing prior complaints and a history of violations of regulations by [d]efendants, corrected the parent company's corporate name . . . and added Ohio citizen Heartland Employment Services” (Dkt. No 18. at 3.)

         Plaintiffs now move to remand the removed action to state court on the grounds that the Court lacks subject matter jurisdiction because the parties are no longer diverse. (Dkt. No. 18.) In response, Defendants move to strike the Plaintiffs' FAC on the grounds that Plaintiffs failed to request leave to amend the complaint despite adding a diversity-destroying defendant. (Dkt. No. 20.)

         LEGAL ...


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