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Telkamp v. Vitas Healthcare Corp. Atlantic

United States District Court, D. Connecticut

February 29, 2016

ELOISA GOMEZ TELKAMP Plaintiff,
v.
VITAS HEALTHCARE CORP. ATLANTIC et al., Defendants.

RULING RE: DEFENDANTS’ MOTIONS TO DISMISS (DOC. NOS. 35, 37, 52, 63, 67, 70 & 79), PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL (DOC. NO. 49), AND PLAINTIFF’S MOTIONS TO FILE SUR-REPLY BRIEFS (DOC. NOS. 78 & 87)

JANET C. HALL UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This is an action filed by plaintiff Eloisa Gomez Telkamp (“Telkamp”) against eighteen defendants. See Am. Compl. (Doc. No. 17). Telkamp’s forty-two count Amended Complaint alleges that these defendants violated her rights in various ways when they participated in the removal of Telkamp from her terminally ill daughter’s hospice room and subsequently hospitalized Telkamp against her will and without legal justification. See id. Sixteen of the named defendants[1] have filed Motions to Dismiss that are pending before the court. See Mot. to Dismiss (Doc. No. 35); Mot. to Dismiss (Doc. No. 37); Mot. to Dismiss (Doc. No. 52); Defs.’ Mot. to Dismiss (Doc. No. 63); Mot. to Dismiss of Defs. Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. (Doc. No. 67); Ashley Creswell’s Mot. to Dismiss (Doc. No. 70); Mot. to Dismiss on Behalf of Defs. Vitas Healthcare Corp. Atlantic and Kim Trowbridge (Doc. No. 79). In addition, Telkamp has filed two Motions for Leave to File Sur-Reply Briefs (Doc. Nos. 78 & 87) and a Motion for Appointment of Counsel (Doc. No. 49). The court will take up all of the pending Motions in this Ruling.

II. FACTS [2]

Telkamp is a resident of the state of Texas who, at the time of the events giving rise to this lawsuit, was in Connecticut to care for her terminally ill daughter. See Am. Compl. at 5 ¶ 28 (Doc. No. 17). Shortly after Telkamp’s arrival in Connecticut, her daughter informed Telkamp that she wished to exit hospice care, which she was receiving as a Vitas Innovative Hospice Care patient in residence at the Groton Regency Center. See id. Telkamp informed defendant Kim Trowbridge (“Trowbridge”), the Vitas Team Leader, of her daughter’s decision. See id. at 6 ¶ 30. The documents necessary to remove her daughter from hospice care were prepared, but not executed, because Trowbridge told Telkamp that a notary would not be available until the following Monday. See id. After the documents were prepared but before a notary would be made available, Telkamp’s daughter appeared to enter the “active dying” phase. See id. at 6 ¶ 31. However, by the following Wednesday, Telkamp’s daughter appeared to recover, and Telkamp again sought the services of a notary. See id. at 8 ¶ 34. At that time, and contrary to her prior representations, Trowbridge indicated that Vitas would not be providing legal services for Telkamp and that Telkamp needed to secure the services of a notary on her own. See id. Telkamp was removed from the hospice’s premises before she had the opportunity to locate a notary and execute the healthcare documents per her daughter’s wishes. See id. at 8 ¶ 35.

During the period that Telkamp’s daughter appeared to be actively dying, Telkamp stayed in her daughter’s hospice room. See id. at 7 ¶ 32-33. Defendants Trowbridge, Tamara Martin-Linnard (“Martin-Linnard”), and Erin Dunning (“Dunning”) refused to provide Telkamp with overnight accommodations in the hospice facility and accused Telkamp of trespass for remaining in her daughter’s hospice room overnight. See id. at 7 ¶¶ 32-33, 8 ¶ 36. On June 20, 2013, the day following Telkamp’s renewed request for the services of a notary, these defendants called the police. See id. at 8 ¶ 36. The officers who responded, defendants Banks and McCarthy, attempted to speak with Telkamp, but she refused to answer questions. See id. at 9 ¶¶ 37-38. Banks and McCarthy ultimately issued Telkamp a ticket for creating a public disturbance and called an ambulance to transport her to a medical facility. See id. Although the police officers alleged that the reason for the transport was that Telkamp was intoxicated, she maintains that she was not intoxicated and did not consent to being transported by ambulance. See id. at 9 ¶ 38, 11 ¶ 44. Thus, Telkamp’s transport from her daughter’s hospice room to defendant Lawrence & Memorial Hospital, Inc. (“L Hospital”), accomplished by defendants Groton Ambulance Association, Inc. (“Groton Ambulance”), Paula Edwards (“Edwards”), and Chester Kaniecki (“Kaniecki”), was against Telkamp’s will and without legal justification. See id. at 10 ¶¶ 39-41.

Once at L Hospital, Telkamp was evaluated by defendants Kristy Davenport (“Davenport”) and Ashley Creswell (“Creswell”). See id. at 14 ¶ 49, 15 ¶ 51. Both Davenport and Creswell refused to let Telkamp leave L Hospital and informed Telkamp that she would be tied to her bed if she tried to exit the facility. See id. at 15 ¶¶ 50-51. Both Davenport and Creswell recorded various statements about the events that led Telkamp to be admitted to L Hospital, including the allegation that Telkamp was intoxicated and had been fighting with staff at the Groton Regency. See id.

At 2:00 AM on June 21, 2013, Telkamp wished to call her daughter and was not permitted to do so. See id. at 16 ¶ 53. She became upset, at which point she was involuntarily medicated by defendant Melissa Monte (“Monte”). See id. at 16 ¶ 53-55. Later that same day, defendant Deirdre Cronin-Vorih (“Cronin-Vorih”) diagnosed Telkamp with alcoholism and recorded her diagnosis in Telkamp’s medical chart. See id. at 19 ¶ 60. Cronin-Vorih also referred Telkamp to crisis intervention services for an Emergency/Psychosocial Assessment, which was performed by defendant Laina Braasch (“Braasch”). See id. at 20 ¶ 65. In her assessment, Braasch recorded the allegations of intoxication and assaultive behavior that were reported by hospice staff. See id. at 20 ¶ 66. Braasch also warned Telkamp that, if she returned to the Groton Regency, she would be arrested. See id.

Defendant Vittorio Ferrero (“Ferrero”) also reviewed Telkamp’s case as part of the crisis intervention services. See id. at 21 ¶ 67. Like Braasch, Ferrero recorded allegations of intoxication and assaultive behavior in his report. See id. He also stated that Telkamp “had a blackout about what happened the past two days, ” which Telkamp denies. See id.

Telkamp was not permitted to return to her daughter’s hospice room. See id. at 23 ¶ 71. Telkamp’s removal from her daughter’s bedside caused her daughter to progress from being “a sociable communicative person to a sad non-communicative person.” Id. During the period following Telkamp’s removal, her daughter kept asking “Where’s my mama?” and “What happened to my mama?” Id. Her daughter died on July 10, 2013, without Telkamp there to comfort her during the dying process. See id.

III. LEGAL STANDARDS

A. Rule 12(b)(1)

“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Where jurisdictional facts are in dispute, the court has the power to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. Id. The burden is on the plaintiffs to establish jurisdiction. Renne v. Geary, 501 U.S. 312, 316 (1991); see also Tandon, 752 F.3d at 243.

A motion to dismiss pursuant to Rule 12(b)(1) is “the proper procedural route” to bring a challenge to a plaintiff’s Article III standing to adjudicate a claim. Alliance for Environmental Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006).

B. Rule 12(b)(5)

Pursuant to Federal Rule of Civil Procedure 4, an individual may properly be served either by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made, ” or by doing any of the following: “(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e). A corporation, partnership, or association may also be served pursuant to state law, or “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.” Fed.R.Civ.P. 4(h)(1)(B).

Connecticut law provides that “process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.” C.G.S.A. § 52-57(a). Connecticut law also provides specific requirements regarding who in a private corporation, partnership, and voluntary association may receive service on the organization’s behalf. See C.G.S.A. § 52-57(c)-(d). Neither Connecticut law nor the Federal Rules provide for service by mail.

When a plaintiff fails to effect proper service upon a defendant and the defendant does not waive service of process pursuant to Rule 4(d), the plaintiff’s action may be subject to dismissal pursuant to Rule 12(b)(5). “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 F. App’x 202, 203 (2d Cir. 2010).

C. Rule 12(b)(6)

When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court properly considers the complaint and, by extension from and in addition to the complaint, “documents plaintiffs had either in [their] possession or had knowledge of and upon which they relied in bringing suit.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). The court takes all of “the factual allegations of the complaint to be true and draw[s] all reasonable inferences in the plaintiff’s favor.” Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). Dismissal of a claim is appropriate if, despite this favorable reading, the complaint fails to allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). The requirement to allege “facts” means that “bald assertions” and “merely conclusory allegations” do not suffice. Jackson v. Cnty. of Rockland, 450 F. App’x 15, 19 (2d Cir. 2011); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is “plausible on its face” if the facts that the plaintiff pleads “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. That is, the complaint must raise “more than a sheer possibility that a defendant has acted unlawfully” and must also do more than “plead facts that are ‘merely consistent with’ a defendant’s liability.” Id. “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

D. Frivolity

In addition to the grounds for dismissal in Rule 12 of the Federal Rules of Civil Procedure articulated above, the court is empowered to dismiss frivolous actions, regardless of whether the plaintiff is proceeding in forma pauperis or has paid the filing fee. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that “district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee”). An action is frivolous when “either (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy, or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

E. Pro Se Plaintiffs

Pleadings filed by pro se plaintiffs, “however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations and citation omitted). The policy of “liberally construing pro se submissions is driven by the understanding that implicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal quotations, alterations, and citation omitted). In sum, pro se litigants are entitled to “special solicitude, ” Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994), which includes interpreting the submissions of a pro se plaintiff “to raise the strongest arguments that they suggest, ” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotations and citation omitted).

IV. DISCUSSION

As a preliminary matter, the court will consider Telkamp’s Motions for Leave to File Sur-Reply Briefs. See Pl.’s Mot. for Leave to File a Sur-Reply Br. (Doc. No. 78); Pl.’s Sur-Reply Brief in Opp. to Mot. to Dismiss on Behalf of Defs. Vitas Healthcare Corp., Atlantic & Kim Trowbridge (Doc. No. 87). In her first Motion (Doc. No. 78), Telkamp states that she seeks leave to file a sur-reply brief in order to “coherently address the issues raised” by the defendants in their assorted filings. Id. at 1. The court appreciates Telkamp’s efforts at clarity and therefore grants both of her Motions for Leave to File Sur-Reply Briefs (Doc. Nos. 78 & 87). The court has reviewed the briefs attached to Telkamp’s Motions, and will consider the arguments raised therein in the ensuing discussion sections of this Ruling.

The court will now turn to an analysis of the arguments raised in the various Motions presently pending before the court. The following discussion will proceed by analyzing the claims of defendants who have moved to dismiss the Amended Complaint on the grounds that it is frivolous, followed by the claims of defendants who have moved to dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6). Finally, the court will consider Telkamp’s pending Motion for Appointment of Counsel (Doc. No. 49).

A. Frivolity

Several of the defendants have moved to dismiss Telkamp’s Amended Complaint on the grounds that the claims stated therein are frivolous. See Mot. to Dismiss of Defs. Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. at 2 (Doc. No. 67); Mot. to Dismiss on Behalf of Defs. Vitas Healthcare Corp. Atlantic and Kim Trowbridge (Doc. No. 79). After careful review of Telkamp’s filings and the arguments put forward by counsel for the defendants, the court concludes that Telkamp’s claims are neither “clearly baseless, such as when allegations are the product of delusion or fantasy” nor “based on an indisputably meritless legal theory.” Livingston, 141 F.3d at 437. Therefore, dismissal on the basis of frivolity is not warranted, and defendants’ Motions to Dismiss on these grounds are denied.

B. Rule 12(b)(1)

Several of the defendants have also moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1). Most, but not all, of the Rule 12(b)(1) arguments raised by the defendants relate to defendants’ contention that Telkamp’s Amended Complaint alleges several claims on behalf of her deceased daughter, even though Telkamp has not established that she has standing to bring such claims on her daughter’s behalf.[3]See Mot. to Dismiss on Behalf of Defs. Vitas Healthcare Corp. Atlantic and Kim Trowbridge at 1 (Doc. No. 79). Separately, defendants Groton Ambulance, Edwards, and Kaniecki allege that the court lacks subject matter jurisdiction over the claims against them because Telkamp “fails to allege any recognizable federal cause of action against the undersigned Defendants or allege plausible facts to support her claims.” Defs.’ Mot. to Dismiss at 2 (Doc. No. 63). The court will consider these Rule 12(b)(1) arguments in turn.

1. Standing

Several defendants have moved to dismiss portions of the Amended Complaint on the grounds that the Amended Complaint includes claims on behalf of Telkamp’s daughter and Telkamp lacks standing to bring these claims. See Mem. of Law in Supp. of Mot. to Dismiss on Behalf of Defs. Vitas Healthcare Corp. Atlantic and Kim Trowbridge at 5-6 (Doc. No. 79-1). Although the Amended Complaint is not entirely clear, portions of that pleading do suggest that Telkamp intended to bring claims on behalf of her deceased daughter. See Am. Compl. at 2 ¶ 2 (Doc. No. 17) (stating that “Plaintiff is also filing this lawsuit because her banishment was a violation of her daughter’s rights”); see id. at 25 ¶ 76 (“The breach of the contract with me also breached the contract with my daughter and ruined her ‘quality of life.’”). However, because Telkamp is a pro se litigant, she cannot assert claims on behalf of other individuals. See Singleton v. Wulff, 428 U.S. 106, 114 (1976) (“‘Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.’” (citations omitted)); Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994) (standing requires that plaintiff “assert[ ] its own legal rights, and not those of a third party”). To the extent that any portion of Telkamp’s Amended Complaint can be construed as asserting a claim on behalf of Telkamp’s deceased daughter, that portion of the Amended Complaint is dismissed pursuant to Rule 12(b)(1).

2. Subject Matter Jurisdiction

Defendants Groton Ambulance, Edwards, and Kaniecki have also moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) on the ground that the court lacks subject matter jurisdiction over Telkamp’s claims. See Mem. of Law in Supp. of Defs.’ Mot. to Dismiss at 19-20 (Doc. No. 63-1). Specifically, these defendants argue that “the Plaintiff either fails to allege any recognizable federal cause of action against the undersigned Defendants or allege plausible facts to support her claims.” See id.

The Amended Complaint alleges that the court has jurisdiction pursuant to section 1983 of title 42 of the United States Code and section 1367 of title 28 of the United States Code, among others.[4] In other words, Telkamp has alleged that the court has original jurisdiction over some of her claims stemming from section 1983 and the United States Constitution, and supplemental jurisdiction over her remaining claims pursuant to section 1367. With respect to Telkamp’s section 1983 claims, the court notes that the two defendants named in Telkamp’s Amended Complaint who are most plausibly state actors, and therefore most clearly subject to liability pursuant to section 1983 if Telkamp’s allegations against them are proven, have not moved to dismiss the Amended Complaint.[5] Thus, portions of Telkamp’s Amended Complaint that clearly allege claims pursuant to section 1983 survive this Ruling, and the court therefore has original jurisdiction over some of Telkamp’s claims. See 42 U.S.C. § 1983. Given the extensive factual overlap between these federal claims and Telkamp’s state law claims that survive this Ruling, the court views the surviving state law claims as “so related to claims in the action within . . . original jurisdiction” that these claims “form part of the same case or controversy under Article III of the United States Constitution, ” even though the state law claims “involve the joinder . . . of additional parties.” 28 U.S.C. § 1367(a). Thus, the court will, for now, continue to exercise supplemental jurisdiction over Telkamp’s state claims. Because the court has subject matter jurisdiction over Telkamp’s claims against Groton Ambulance, Edwards, and Kaniecki under section 1367 of title 28 of the United States Code, these defendants’ Motion to Dismiss pursuant to Rule 12(b)(1) is denied.

C. Rule 12(b)(5)

Multiple defendants have moved for dismissal pursuant to Rule 12(b)(5). See Mot. to Dismiss (“Ferrero MTD”) (Doc. No. 52); Mot. to Dismiss of Defs. Genesis Healthcare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. (“Genesis Defendants MTD”) (Doc. No. 67). Each of these defendants has submitted an Affidavit in support of their contention that they were not properly served. See Affidavit of Vittorio Ferrero, M.D. in Support of Motion to Dismiss (“Ferrero Aff.”) (Doc. No. 53-1); Affidavit of Tamara Martin-Linnard (“Martin-Linnard Aff.”) (Doc. No. 67-2); Affidavit of Gail Ward Curland (“Curland Aff.”) (Doc. No. 67-3); Affidavit of Erin Carver (“Carver Aff.”) (Doc. No. 67-4); Affidavit of Susan M. Overton, Esq. (“Overton Aff.”) (Doc. No. 67-5).

In responding to defendants’ Rule 12(b)(5) Motions and supporting Affidavits, Telkamp bears the burden of establishing that service was sufficient. See Khan, 360 F. App’x at 203. The court will discuss each defendant separately.

1. Vittorio Ferrero, M.D.

Defendant Ferrero filed an Affidavit attesting that, although he received a copy of the Amended Complaint (Doc. No. 17) in the mail, copies of the Summons and Complaint in this matter have never been served on him pursuant to any of the methods outlined by Rule 4(e) or C.G.S.A. § 52-57(a). Ferrero Aff. at 2 (Doc. No. 53-1). Ferrero also did not file a waiver of service in this matter. In response to Ferrero’s Affidavit asserting that he was not sufficiently served, Telkamp has neither alleged nor offered evidence in the form of an Affidavit from a process server that she properly served Ferrero; instead, Telkamp argues that, because an attorney appeared on Ferrero’s behalf on August 10, 2015, Ferrero “waived service of process and thus this Court has personal jurisdiction over Dr. Ferrero.” Mem. of Law in Opp. to Mot. to Dismiss at 2 (Doc. No. 61). However, it is a well-settled principle of law in this Circuit that merely appearing before the court does not waive the defense of insufficient service of process. See Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972) (“The need to file a special appearance in order to object to jurisdiction or venue has vanished. A party can file a general appearance and object to personal jurisdiction or venue at any time before the answer is filed or in the answer.”). Ferrero properly raised the insufficiency of service against him in his Motion to Dismiss, and therefore he has not waived this defense. Because Telkamp has failed to offer any evidence that Ferrero was properly served, she has failed to carry her burden of establishing sufficient service with respect to defendant Ferrero. Ferrero’s Rule 12(b)(5) Motion to Dismiss (Doc. No. 52) is granted.

2. Tamara Martin-Linnard

Defendant Martin-Linnard also filed an Affidavit attesting that she was not served with the Complaint or Amended Complaint “in hand.” Martin-Linnard Aff. at 2 (Doc. No. 67-2). However, Martin-Linnard states that “[a] copy of the Amended Complaint was given to [her] husband by an unknown individual.” Id. Martin-Linnard also notes that she “maintain[s] [her] usual place of abode in New London, Connecticut.” Id. On its face, this Affidavit is insufficient to establish that Martin-Linnard was not properly served, as the Affidavit allows for the possibility that service was accomplished at Martin-Linnard’s “usual place of abode with someone of suitable age and discretion who resides there, ” i.e., Martin-Linnard’s husband. Fed.R.Civ.P. 4(e)(2)(B).

The facial inadequacy of Martin-Linnard’s Affidavit is more than an academic concern, because a Return of Service docketed after the filing of Martin-Linnard’s Motion to Dismiss and supporting Affidavit indicates that Terrance Perry of Connecticut Process Serving, LLC left a copy of the Summons and Amended Complaint for Martin-Linnard with “Michael Linnard, Spouse” at an address in New London, Connecticut. See Return of Service (Doc. No. 72).[6] Although the Return of Service does not definitively establish that Martin-Linnard was properly served-for example, it does not state that the address in New London, Connecticut where the server left copies of the Summons and Amended Complaint is actually Martin-Linnard’s abode-when combined with the facial inadequacy of Martin-Linnard’s Affidavit, the Return of Service is sufficient to carry Telkamp’s burden of establishing proper service pursuant to Rule 4(e)(2)(B) at this juncture. The court will not dismiss the counts against Martin-Linnard on the grounds that she was not properly served. The court notes, however, that this decision is without prejudice to Martin-Linnard filing a subsequent Rule 12(b)(5) Motion if she can allege that the New London address was not her abode at the time of service or that service by delivery to Michael Linnard at that address was insufficient for some other reason.

3. Gail Ward Curland

Defendant Curland filed an Affidavit attesting that she was not served with the Summons and Amended Complaint “in hand or at [her] usual place of abode.” Curland Aff. at 2 (Doc. No. 67-3). Curland acknowledges that she received a copy of the Complaint in the mail, and a copy of the Amended Complaint from the receptionist at her place of employment. See id. However, Curland attests that she has not designated her employer’s receptionist as her agent. See id.

Telkamp does not appear to address Curland’s contention that she was insufficiently served in her Opposition to Curland’s Motion to Dismiss, see Mem. of Law in Opp. to the Mot. to Dismiss of Defs. Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. (Doc. No. 71); see also Pl.’s Sur-Reply Br. in Opp. to Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard and Erin Dunning’s Mot. to Dismiss (Doc. No. 78-1), but a Return of Service docketed after Curland filed her Motion to Dismiss and supporting Affidavit indicates that Terrance Perry of Connecticut Process Serving, LLC left a copy of the Summons and Amended Complaint for Curland with a receptionist at Groton Regency on September 1, 2015. See Return of Service (Doc. No. 73).

Because Curland attests that she has not appointed the receptionist at Groton Regency as her agent, and because Telkamp has failed to produce any evidence that would either contradict Curland’s sworn statement or establish that Curland was otherwise served in accordance with Rule 4(e) or Connecticut law, Telkamp has failed to carry her burden of establishing that she sufficiently served Curland. Curland’s Rule 12(b)(5) Motion to Dismiss (Doc. No. 67) is granted. 4. Erin Dunning Defendant Erin Carver (née Dunning) (“Dunning”)[7] filed an Affidavit attesting that she has never been served “in hand or at [her] usual place of abode.” Carver Aff. at 2 (Doc. No. 67-4). Telkamp does not appear to address Dunning’s contention that she was not properly served in her Opposition to Dunning’s Motion to Dismiss, and she has not submitted an Affidavit or other evidence that shows she caused Dunning to be properly served. See Mem. of Law in Opp. to the Mot. to Dismiss of Defs. Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. (Doc. No. 71); see also Pl.’s Sur-Reply Br. in Opp. to Genesis HealthCare, LLC, Gail Ward Curland, Tamara Martin-Linnard and Erin Dunning’s Motion to Dismiss (Doc. No. 78-1). Furthermore, no Return of Service has been docketed with respect to Dunning, and Dunning has not filed a waiver of service in this case.

Because Telkamp has failed to provide any evidence that she properly served Dunning pursuant to Rule 4(e) or Connecticut law, she has failed to carry her burden of establishing sufficient service. Dunning’s Rule 12(b)(5) Motion to Dismiss (Doc. No. 67) is granted.

5. Genesis HealthCare, LLC

As noted above, the requirements for proper service of a corporation are outlined in Rule 4(h) and C.G.S.A. § 52-57(c). In support of its contention that it was not served in accordance with these requirements, defendant Genesis HealthCare LLC (“Genesis”) has submitted an Affidavit from Susan M. Overton (“Overton”), who identifies herself as “Vice President, Deputy General Counsel of Risk and Litigation at Genesis.” Overton Aff. at 1 (Doc. No. 67-5). Overton attests that she is routinely notified when Genesis receives service of process in Connecticut, and she further states that she has not received notice of service in this lawsuit. Id. at 2. Overton alleges that “at no time was Genesis Healthcare LLC ever served with the Amended Complaint in this matter.” Id.

Telkamp does not appear to address Overton’s contention that Genesis was not properly served in her Opposition to Genesis’s Motion to Dismiss, and she has not submitted an Affidavit or other evidence that shows she caused Genesis to be properly served. See Mem. of Law in Opp. to the Mot. to Dismiss of Defs. Genesis Healthcare, LLC, Gail Ward Curland, Tamara Martin-Linnard, and Erin Dunning Pursuant to Rule 12(b), F.R.Civ.P. (Doc. No. 71); see also Pl.’s Sur-Reply Br. in Opp. to Genesis Healthcare, LLC, Gail Ward Curland, Tamara Martin-Linnard and Erin Dunning’s Mot. to ...


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