Gross v. Governor, State of CT et al

Filing 150

ORDER granting in part and denying in part 139 Motion to Amend/Correct. See attached order. Signed by Judge Vanessa L. Bryant on 4/5/2013. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CAROLYN DEE KING,
Plaintiff,
v.
M. JODI RELL, Governor,
State of Connecticut, et al.,
Defendants.

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CIVIL ACTION NO.
3:06-cv-1703 (VLB)

April 5, 2013

ORDER GRANTING IN PART AND DENYING IN PART [DKT. #139] PLAINTIFF’S
MOTION TO AMEND/CORRECT AMENDED COMPLAINT
The Court previously dismissed the Plaintiff’s OBRA and Patient’s Bill of
Rights claims against Grove Manor on the basis that the Plaintiff had waived
those claims by failing to respond to the motion to dismiss those claims which
was affirmed by the Second Circuit. [Dkt.#114, p. 20]; [Dkt. #127, p.11]. In that
same Order, the Court denied the motion to dismiss the Plaintiff’s intentional and
negligent infliction of emotional distress claims. [Dkt.#114, p. 21]. The Court
then subsequently dismissed the Plaintiff’s emotional distress claims without
prejudice as those remaining claims did not meet the $75,000 threshold for
diversity jurisdiction. [Dkt. #118]. On appeal, the Second Circuit expressly noted
that the emotional distress claims were dismissed without prejudice but may be
reasserted if quasi-judicial immunity does not apply to the claims as to Donovan,
Newman, and Grove Manor. [Dkt. #127, p. 11 n.5]. The dismissal of the Plaintiff’s
statutory claims against Grove Manor Nursing Home was with prejudice as
indicated by the fact that the Court did not give Plaintiff leave to replead those

claims. Therefore the Plaintiff may not amend the complaint now to reassert
those statutory claims, which the Court previously found were abandoned and
waived.
The Plaintiff may, however, amend the complaint to reassert the emotional
distress claims which were expressly dismissed without prejudice and which the
Second Circuit has already acknowledged would be appropriately reasserted
where the civil rights claims against Donovan, Newman and Grove Manor are not
barred by quasi-judicial immunity. Even though the Plaintiff has not reasserted
any civil rights claims against Grove Manor in its proposed amended complaint,
the Court may exercise supplemental jurisdiction over the Plaintiff’s state law
emotional distress claims against Grove Manor because those claims form part of
the same case or controversy over which the Court has original jurisdiction in
that there is a common nucleus of operative fact. See 16 Moore's Federal
Practice–Civil § 106.66(1) (2012) (noting that under 28 U.S.C. § 1367(c)(3), “[i]f a
defendant faces only state claims, the court must exercise its supplemental
jurisdiction over those claims as long as claims remain against other defendants
for which original jurisdiction is present”); Rivera v. Incorporated Village of
Farmingdale, No. 06CV 2613 (DRH), 2011 WL 1260195, at *8n.6 (E.D.N.Y. Mar. 30,
2011). The Plaintiff is therefore directed to file an amended complaint which does
not reassert the statutory claims which were prior dismissed with prejudice by
4/19/2013.
IT IS SO ORDERED.

________/s/__ ________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: April 5, 2013