Favaloro v. BJC Healthcare et al
MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that plaintiff's motion for leave to file plaintiff's second amended complaint is DENIED. [Doc. 46] IT IS FURTHER ORDERED that defendants have until April 23, 2015 to file a response to plaintiff's original complaint filed on February 18, 2014. ( Response to Court due by 4/23/2015.). Signed by District Judge Charles A. Shaw on 4/9/2015. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SALLY K. FAVALORO,
BJC HEALTHCARE, et al.,
No. 4:14-CV-284 CAS
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Motion for Leave to File Plaintiff’s Second
Amended Complaint, along with the proposed second amended complaint. The matter is fully
briefed and ready for decision. For the following reasons, the Court will deny plaintiff’s Motion for
Leave to File Plaintiff’s Second Amended Complaint.
Plaintiff filed her initial complaint on February 18, 2014 against BJC Healthcare, Barnes-
Jewish Hospital (“BJH”), and four individual defendants alleging that she had been illegally
discharged from her employment. This complaint was 27 pages long and asserted seven causes of
On October 20, 2014, plaintiff filed a first amended complaint, adding four individual
defendants, including the President of BJH. This new complaint was 129 pages long, including a
table of contents, 800 paragraphs, and asserted at least 30 separate causes of action. The first
amended complaint asserted six “Claims Sets,” each containing between six and thirteen subclaims
or legal theories against defendants. As pleaded, the first amended complaint asserted potentially
Finding the first amended complaint indecipherable, the Court granted defendants’ motion
to strike the first amended complaint. See Doc. 40. The Court ordered plaintiff to file a second
amended complaint with “a short and plain statement of the claim showing that the pleader is
entitled to relief” and to state her claims “in numbered paragraphs, each limited as far as practicable
to a single set of circumstances,” and “each claim founded on a separate transaction or occurrence
. . . must be stated in a separate count.” Id. Further, the Court ordered that the second amended
complaint shall specifically state which claims are being asserted against which named defendants.
Additionally, plaintiff was ordered to eliminate any immaterial or redundant material.
Pursuant to the Court’s Order, plaintiff seeks leave to file her second amended complaint.
Defendants oppose the motion, stating that the proposed second amended complaint is no clearer
than the first, and “continues to make a mockery of the Federal Rules of Civil Procedure.” (Resp.
Although leave to amend is to be freely granted under Federal Rule of Civil Procedure 15(a),
the Court has discretion whether to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330-32 (1971). Factors to consider in determining whether leave to amend
should be granted include (1) whether the motion was filed in bad faith with dilatory motive; (2)
whether the motion was filed with undue delay; (3) whether leave to amend would be unduly
prejudicial to the opposing parties; and (4) whether the proposed amendment would be futile. See
Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
It is appropriate to deny leave to amend where the filing of the amended complaint would
be futile. Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1082 (8th Cir. 1993); Harbor
Ins. Co. v. Essman, 918 F.2d 734, 739 (8th Cir. 1990). It is well-settled law that district courts have
the power to deny leave to amend if the proposed changes would not remedy the deficiencies of the
original complaint. Weimer v. Amen, 870 F.2d 1400, 1407 (8th Cir. 1989); Norbeck v. Davenport
Community Sch. Dist., 545 F.2d 63, 70 (8th Cir. 1976).
Plaintiff’s proposed second amended complaint fails to remedy the defects of the first
amended complaint, and the Court finds that granting leave to amend would be futile. The second
amended compliant, like the first, violates Federal Rule 8 as the allegations are not “simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). On page 1, table of contents, plaintiff states: “G. The Legal
Claims, In Short and Plain Statements ¶¶ 100-799.” This entry alone conflicts with Rule 8, which
requires “a short and plain statement of the claim.” Plaintiff has filed 699 paragraphs of self-titled
“short and plain statements” supporting her relatively simple employment action. The proposed
second amended complaint is 90 pages long, includes 959 paragraphs, multiple subparagraphs, subsubparagraphs (i.e., ¶¶ 800.68.1, 800.68.2, 800.68.2, et seq.), and contains wholly irrelevant and
The second amended complaint includes many cross-references, including 74 claims of
conspiracy and 13 claims of negligence per se that refer the Court to other paragraphs. (2d Am.
Compl., Claims 4.5.1-4.5.6, 601.1-605.12). As pointed out by defendants, scores of plaintiff’s
factual allegations refer to other allegations, complicating any attempt to comprehend the facts
giving rise to the claims. For example, plaintiff pleads “Further Facts Supporting ¶¶ 10-99,”
followed by nine pages of additional factual allegations. (2d Am. Compl., 71-80, ¶¶ 800.66.1-
800.74.3). This new section of facts allegedly supports plaintiff’s section entitled “The Factual
Claims, In Detail,” which spans 33 pages. The additional nine pages contain numerous other crossreferences further complicating matters.
Plaintiff’s proposed second amended complaint does not withstand a motion to strike under
Rule 12(f) of the Federal Rules of Civil Procedure. The proposed second amended complaint
continues to allege immaterial, impertinent and scandalous matter, including the following:
28.4. Nurse X’s story also reminded Plaintiff of something Plaintiff had been told
by another Nurse, Y. Nurse Y said Becker directed “Becky,” a low-level manager
and known Becker crony, to wear a secret audiotaping device inside her lapel and
inside her ID badge to secretly film Plaintiff. . . .
32.2. March 28. Plaintiff and Randolph met with Jaques to report: files and
documents missing from their offices or office cabinets; computer files mysteriously
deleted; displaced ceiling tiles; ceiling dust or powder on their desks and floors; their
office doors opened after they’ve locked them (Becker has a key); and the fact that
their notes, from the meetings with the counselor Kerrie Carlin who was brought in
to check Becker’s hostility, are missing.
32.3(f). [Becker] apparently conducting secret electronic surveillance of Plaintiff and
Randolph through devices in Plaintiff and Randolph’s Surgical Suite office;
50.6. Sometime between August 23 and September 13, while Plaintiff was on
vacation, Defendants, in further retaliation against Plaintiff, installed illegal
eavesdropping devices (bugs) in Plaintiff’s home, 1519 Jonquil Drive, Webster
Groves, MO 63119.
Nor would many of the claims of conspiracy withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. For example, plaintiff’s claims of negligence per
se for violating federal regulations, federal criminal law, and Missouri criminal law, taken as a
whole, would not withstand a motion to dismiss under Rule 12(b)(6). The criminal statutes plaintiff
asserts do not give rise to separate civil actions. See, e.g., United States v. Wadena, 152 F.3d 831,
846 (8th Cir. 1998) (“Courts repeatedly have held that there is no private right of action under [18
U.S.C. § 241, conspiracy against rights], even though the statute allows federal authorities to pursue
In her motion, plaintiff states that if the Court denies her motion for leave to file the second
amended complaint, she seeks an order identifying which claims or paragraphs do not meet the
federal requirements, or “what information plaintiff should include or exclude to meet the court’s
requirements.” To identify with specificity each paragraph, subparagraph or sub-subparagraph that
contains redundant or immaterial content would require an order nearly the length of the proposed
second amended complaint, which would be nearly impossible given the Court’s caseload and other
duties. More importantly, the Court is not an advocate for any party and does not offer legal advice
to attorneys, including those who run afoul of Federal Rule 8. At best, the proposed second
amended complaint is misdirected advocacy; at worst, it is harassment of the defendants and of the
Plaintiff’s proffered amended complaint does not cure but rather perpetuates the defects of
the first amended complaint, and the Court has no reason to believe plaintiff could remedy those
defects through further pleading attempts. As a result, plaintiff’s motion for leave to file a second
amended complaint will be denied.
IT IS HEREBY ORDERED that plaintiff’s motion for leave to file plaintiff’s second
amended complaint is DENIED. [Doc. 46]
IT IS FURTHER ORDERED that defendants shall have until April 23, 2015 to file a
response to plaintiff’s original complaint filed on February 18, 2014.
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 9th day of April, 2015.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?