Riess et al v. Metsun Two Baton Rouge LA Senior Living, LLC et al

Filing 15

RULING: Defts motion to dismiss 6 Pltfs claims for negligence and damages that occurred before 4/9/2011 is GRANTED. Defts motion to dismiss Pltfs claims for negligence and damages that occurred on or after 4/9/2011 is DENIED. With respect to Pltfs claims for negligence that occurred on or after 4/9/2011 and Pltfs breach of contract claim, Pltts request for leave to amend the pleadings, in conjunction with Defts motion for a more definite statement, is GRANTED. Signed by Judge James J. Brady on 11/5/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHARLOTTE RIESS &
ARNOLD E. FELDMAN
CIVIL ACTION
VERSUS
NO. 12-280-JJB
METSUN TWO BATON ROUGE LA
SENIOR LIVING, L.L.C. &
SUNRISE SENIOR LIVING
MANAGEMENT, INC.
RULING ON DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on a motion to dismiss filed by Defendants,
MetSun Two Baton Rouge LA Senior Living, L.L.C., and Sunrise Senior Living
Management, Inc. (Doc. 6). Plaintiffs Charlotte Riess and her son, Arnold E. Feldman,
filed this action in state court on April 9, 2012. Defendants removed Plaintiffs’ action to
this Court pursuant to 28 U.S.C. § 1446. Jurisdiction is proper under 28 U.S.C. § 1332.
Defendants now ask that Plaintiffs’ action be dismissed for failure to state a claim upon
which relief can be granted pursuant to FED. R. CIV. P. 12(b)(6), or in the alternative, that
Plaintiffs be compelled to provide a more definite statement in accordance with FED. R.
CIV. P. 12(e). (Doc. 6-1). Should this Court be inclined to dismiss, Plaintiffs request
leave to amend their petition pursuant to FED. R. CIV. P. 15(a). (Doc. 9). For the reasons
stated herein, the Court grants Defendants’ motion in part and denies in part.
Furthermore, Plaintiffs are granted leave to amend their petition.
I.
In their petition, Plaintiffs allege that on August 31, 2010, Riess became a
resident of Sunrise at Seigen, an assisted living facility owned and operated by

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Defendants. Plaintiffs claim that on April 10, 2011, as a result of Defendants’ failure to
supervise or secure Riess, she was found on the floor having injured her hip, among
other things. Plaintiffs further allege that Defendants committed acts of negligence that
resulted in injuries to Riess on December 18, 2010, January 7, 2011, and February 28,
2011. Both Riess and Feldman claim to have suffered mental and economic injuries as
a result of Defendants’ conduct, though only Riess claims to have suffered physical
injuries. Finally, Plaintiffs allege that Defendants breached a contract entered into
between Riess and Defendants. (Doc. 1-1).
II.
Civil actions may be dismissed for “failure to state a claim upon which relief can
be granted.” FED. R. CIV. P. 12(b)(6). “A motion to dismiss . . . challenges the adequacy
of a complaint on its face.” Kamen v. Int’l Broth. of Elec. Workers (IBEW) AFL-CIO, 505
F. Supp. 2d 66, 71 (D.D.C. 2007). “Dismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). In evaluating a
motion to dismiss, the court accepts “all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.” Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004). After assuming the veracity of the plaintiff’s
well-pleaded facts, the court should “determine whether they plausibly give rise to an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
A plaintiff’s claims must go beyond mere “labels and conclusions.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). That is to say, “a formulaic recitation of a cause of
action will not do.” Id. Indeed, pleadings that contain nothing more than conclusions “are
not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679.
FED. R. CIV. P. 12(e) authorizes a party to file a motion for a more definite
statement. Such a motion is the proper remedy when “a complaint is ambiguous or does
not contain sufficient information to allow a responsive pleading to be framed.” Beanel v.
Freeport-McCoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999).
Finally, FED. R. CIV. P. 15(a) provides that a party may amend its pleadings with
the court’s leave, which should be given freely “when justice so requires.” Indeed,
“district courts often afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case.” Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). Rule 15(a) “evinces a bias in favor of
granting leave to amend” such that a court should have a “substantial reason” for
denying the request. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.
1981).
III.
Defendants first argue that, since Plaintiffs’ action was commenced on April 9,
2012, any injury prior to April 9, 2011 should be dismissed as having prescribed. (Doc.
6-1). Such injuries would include those alleged by the Plaintiffs to have occurred on
December 11, 2010, January 7, 2011, and February 28, 2011.
In Louisiana, “[d]elictual actions are subject to a liberative prescription of one
year” which begins to run “from the day injury or damage is sustained.” LA. CIV. CODE art.
3492. Plaintiffs, however, argue that the continuing tort doctrine operated to suspend

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prescription until April 10, 2011, when Defendants’ alleged final tortious act occurred.
(Doc. 9). The continuing tort doctrine holds that when “tortious conduct and resulting
damages continue, prescription does not begin until the conduct causing the damage is
abated.” South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.
1982). In order for the doctrine to apply, the conduct must “be of a continuing nature”
and it must also “give rise to successive damages from day to day.” Hunter v. Tensas
Nursing Home, 32-217 (La. App. 2 Cir. 10/27/99); 743 So.2d 839, 842, writ denied,
1999-3334 (La. 2/4/00); 754 So.2d 228.
Plaintiffs first support their argument of the continuing tort doctrine’s applicability
by relying on Randall v. Concordia Nursing Home, 2007-101 (La. App. 3 Cir. 8/22/07);
965 So.2d 559, writ denied, 2007-2153 (La. 1/7/08); 973 So.2d 726. Randall involved a
claim for “violations of Mrs. Randall’s ‘right to be treated courteously, fairly and with the
fullest measure of dignity’ as guaranteed to her” in Louisiana’s Nursing Home
Resident’s Bill of Rights (LA. REV. STAT. § 40:2010.8). Id. at 569. The Third Circuit found
that the trial court’s reliance on the testimony of multiple witnesses that the nursing
home was “continuously and habitually understaffed” was not manifestly erroneous. Id.
at 569–70. Thus, it was reasonable for the trial court to conclude, based on the
testimony, that the continuous understaffing damaged Mrs. Randall on a day-to-day
basis. Id. at 570.
Plaintiffs also direct the Court to Petre v. Living Centers-E., Inc., 935 F. Supp.
808 (E.D. La. 1996) and Francis v. Health Care Capital, Inc., 933 F. Supp. 569 (E.D. La.
1996). Like Randall, both Petre and Francis involved allegations of nursing home
neglect; each case was before the court on the defendants’ motions for summary

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judgment. Petre, 935 F. Supp. at 810; Francis, 933 F. Supp. at 570. In both cases, the
court found that the defendants’ overall negligent care “rose to the level of tortious
activity due to its continuous and cumulative effect over time and, therefore each
alleged incident would not have necessarily been an actionable tort standing alone.”
Petre, 935 F.Supp. at 815; Francis, 933 F.Supp. at 574.
These cases, however, do not counsel in Plaintiffs’ favor. Unlike Randall, the
torts alleged in Plaintiffs’ petition were not comprised of continuing acts that gave rise to
successive, day-to-day damages. Randall also involved a different type of tort claim—
one based on a specific provision of Louisiana’s Nursing Home Resident’s Bill of Rights.
Finally, each of Riess’s alleged injuries would have been an actionable tort standing
alone. Unlike Petre and Francis, Defendants’ alleged negligent acts did not become
tortious only because of their cumulative effect over time.
Instead, Plaintiffs’ claims are more like those in Hunter v. Tensas Nursing Home.
There, the plaintiff’s aunt suffered several acts of abuse while a resident at the
defendant’s nursing home. Id. at 840. The court reasoned that even though the alleged
acts of abuse were similar (in that they all arose from the neglect of the nursing home’s
staff) each instance of abuse was “clearly separate and distinct, with particular damages
flowing from each individual occurrence.” Id. at 842. Thus, the nursing home’s conduct
did not amount to “continuing acts of abuse.” Id.
As was the case in Hunter, each of Riess’s specifically alleged injuries—skin
tears and an ankle/foot injury—was separate and distinct, with damages flowing from
each occurrence. Thus, the continuing tort doctrine is inapplicable and did not prevent
the running of prescription. All of Plaintiffs’ tort claims for which the alleged injury

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occurred before April 9, 2011, therefore must be dismissed as having prescribed. All of
Plaintiffs’ claims for emotional distress and loss of consortium damages that are
premised upon the prescribed tort claims are accordingly dismissed.
Defendants next argue that Plaintiffs’ claim for the injury Riess allegedly suffered
on April 10, 2011 should also be dismissed. Defendants argue that Plaintiffs have failed
to properly allege a claim for negligence. A successful claim for negligence must
demonstrate that the defendant owed, and subsequently breached, a duty that he had
to the plaintiff, that the breach was both the cause-in-fact and legal cause of the
plaintiff’s injuries, and that actual damage occurred. Mathieu v. Imperial Toy Corp., 940952 (La. 11/30/94); 646 So.2d 318, 322 (La. 1994).
Plaintiffs’ claim for this act of negligence, however, does not go beyond mere
“labels and conclusions.” Twombly, 550 U.S. at 555. Plaintiffs’ allegations provide only
“a formulaic recitation” of the elements of their cause of action. Id. Thus, Plaintiffs have
not put forth sufficient facts such that this Court would be able “to draw the reasonable
inference that [Defendants are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
In accordance with FED. R. CIV. P. 15(a), however, the Court grants Plaintiffs leave to
amend their pleadings.
To the extent that Plaintiffs are able to amend their petition to state a sufficient
claim for negligence, the Court finds that Plaintiffs’ claims for the emotional distress and
loss of consortium damages premised upon that negligence claim have been
adequately pled.
Finally, Defendants ask that Plaintiffs’ breach of contract claim be dismissed. A
prima facie case for a breach of contact claim requires that the plaintiff prove: (1) that

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the obligor undertook an obligation to perform; (2) that the obligor failed to perform the
obligation (the breach); and (3) that the failure to perform resulted in damages to the
obligee. Garco, Inc. v. Rob’s Cleaning & Powerwash, Inc., 2008-1249 (La. App. 4 Cir.
4/22/09); 12 So.3d 386, 391, writ denied, 2009-1114 (La. 9/4/09); 17 So.3d 965.
Plaintiffs’ petition alleges only that “Riess became a resident of Sunrise . . . pursuant to
a contract with defendants” and that “the injuries [she] sustained . . . were the direct and
foreseeable result of the defendants’ breach of their contract with [her].” Just as with
their claim for negligence, Plaintiffs petition does not allege the necessary factual basis
for a breach of contract claim. In light of their request, however, Plaintiffs will be given
leave to amend this claim as well. In doing so, Plaintiffs should indicate the specific
contractual provision Defendants have allegedly breached.
IV.
For the foregoing reasons, Defendants’ motion to dismiss (doc. 6) Plaintiffs’
claims for negligence and damages that occurred before April 9, 2011 is GRANTED.
Defendants’ motion to dismiss Plaintiffs’ claims for negligence and damages that
occurred on or after April 9, 2011 is DENIED.
With respect to Plaintiffs’ claims for negligence that occurred on or after April 9,
2011 and Plaintiffs’ breach of contract claim, Plaintiffs’ request for leave to amend the
pleadings, in conjunction with Defendants’ motion for a more definite statement, is
GRANTED.
Signed in Baton Rouge, Louisiana, on November 5, 2012.

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

JAMES J. BRADY, DISTRICT JUDGE

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