United States District Court, D. Connecticut
ORDER DENYING MOTION TO DISMISS
Jeffrey Alker Meyer United States District Judge.
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.
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.
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.
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.
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
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.”
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.
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.
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).
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.
with certification and opinion requirement of Conn. ...