Schachter v. Sunrise Senior Living Management, Inc.

          ORDER DENYING MOTION TO DISMISS

          Jeffrey Alker Meyer United States District Judge.

         This case involves claims arising from the injury and decline of an elderly resident while she resided at an assisted living facility in Stamford, Connecticut. The defendants now move to dismiss plaintiff's claims. I will deny their motion.

         Background

          Plaintiff Dorina Schachter started living at the Sunrise Assisted Living facility in Stamford, Connecticut in 2016. At the time she moved in, she was coherent, functional, and social, but she had begun to have memory issues. In January 2017, Schachter was transferred with her son Theodore's consent to the “Dementia Floor” of the facility in light of her wandering and need for greater supervision. Doc. #15 at 7.

         On January 14, 2017, Theodore took his mother out for lunch, and she seemed fine. But then, about eleven days later, she developed a fever, and on the morning of January 26, 2017, Theodore received a call from the facility that his mother had been found sleeping on the floor of her room. He was told she merely had “rug burn” on her head. Id. at 8-10.

         Three hours later, Theodore heard from the facility again, this time telling him that his mother had a high fever and was being transported to the hospital emergency room. Theodore went to the hospital, and he saw that his mother looked like she had been physically attacked, with numerous bruises on her body and a gash (not just a “rug burn”) on her head. Ibid.

         According to the complaint, Schachter was not properly monitored while on the Dementia Floor at the facility. Nor was she sent to the hospital until hours after her wounds were discovered. Since this incident, Schachter has never been the same. She can no longer communicate verbally, except for speaking gibberish. Ibid.

         Schachter and her son as her agent have filed this lawsuit against the following defendants: Sunrise Senior Management, Inc.; Sunrise Senior Living Home Care, Inc.; Sunrise Senior Living Services, Inc.; Al I/Stamford Senior Housing, LLC, acting through its manager Sunrise Senior Management, Inc., d/b/a Sunrise of Stamford; and various “John Doe” and “Jane Doe” and “Entity Doe” defendants. I will refer to the named corporate defendants collectively as “Sunrise.”

         This case was initially filed in state court in Queens, New York, before it was removed by Sunrise to the Eastern District of New York, and then sua sponte transferred pursuant to 28 U.S.C. § 1404(a) to the District of Connecticut. Before the case was transferred, Schachter was granted leave to file an amended complaint. Count One of the amended complaint alleges a claim for negligence against Sunrise. Count Two alleges negligence against the Doe defendants. Count Three alleges a claim for negligent infliction of emotional distress against all defendants. Count Four alleges breach of contract against Sunrise. Doc. #15 at 10-16.

         Sunrise now moves to dismiss on several grounds pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(6). Sunrise's principal argument for dismissal is that Schachter has failed to file an appropriate certification and expert opinion that is required by Connecticut state law for a claim alleging medical malpractice. See Conn. Gen. Stat. § 52-190a. Sunrise otherwise challenges the amendment of Schachter's complaint to add new parties.

         Discussion

         Rule 12(b)(5) of the Federal Rules of Civil Procedure allows for dismissal on grounds of insufficient service of process. If a defendant moves to dismiss for failure to serve adequate process under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service. See Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010). An alleged failure to comply with the certification and opinion requirements of Conn. Gen. Stat. § 52-190a is considered under Connecticut law to be a failure to effect proper service of process. See Morgan v. Hartford Hosp., 301 Conn. 388, 394 (2011).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a complaint on the ground that it fails to state a claim for which relief may be granted. For purposes of a Rule 12(b)(6) motion, the Court must accept as true all factual matters alleged in a complaint, although a complaint may not survive unless the facts it recites are enough to state plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014).

         Compliance with certification and opinion requirement of Conn. ...