KONGTCHEU v. SECAUCUS HEALTH CARE LLC

Filing 35

OPINION. Signed by Judge Claire C. Cecchi on 5/30/14. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PHILBERT F. KONGTCHEU,

Civil Action No.: 2:13-cv-1856

Plaintiff,
OPINION
v.
SECAUCUS HEALTHCARE CENTER, LLC.
Defendant.

CECCHI, District Judge.

Before the Court are two of Plaintiff’s motions. The first is an application seeking
injunctive relief (ECF No. 28). The second is styled as a “motion for injunctive relief and
declaratory judgment” (ECF No. 30). The Court held a hearing on the motions on March 28, 2014.1
For the reasons set forth below the Court will deny Plaintiff’s motion for injunctive relief (ECF
No. 28) as moot, and will deny Plaintiffs motion for injunctive relief and declaratory judgment
(ECF No. 30). Plaintiff shall be given 90 days to amend his Complaint to add factual allegations
related to his second application for injunctive relief
I.

BACKGROUND
Plaintiff was a resident at Defendant’s long-term healthcare facility, and this dispute arises

out of numerous Complaints by Plaintiff regarding his care at that facility, (ECF No. 28-2 ¶ 2).

The Court considers any new arguments not presented by the parties to be waived.
Brenner v. Local 514, United Bhd. of Carpenters & Joiners. 927 F.2d 1283, 1298 (3d Cir. 1991)
(“It is well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).
1

Before a trip to China, Plaintiff filed a motion seeking an order barring Defendants from entering
his room and removing his electrical appliances while he was away. (ECF No. 28). Defendant
opposed, and submitted a policy document indicating that Plaintiffs electrical appliances violated
their internal safety policies. (ECF No. 29). Upon return from his medical trip to China, Defendant
denied Plaintiff’s admission to the facility, and Plaintiff appeared in court to orally petition the
court for an order readmitting him into the facility. The Court allowed the parties additional
briefing, and reserved judgment on that petition.
The Parties agreed at oral argument regarding this petition that the initial motion for
injunctive relief (ECF No. 28) was moot, and agreed to a briefing schedule regarding Plaintiffs
new application. Plaintiffs new application (ECF No. 30) was submitted on April 11, 2014. That
application seeks: (1) a declaration that Defendant’s refusal to admit Plaintiff into the facility
violated 42 U.S.

§ 1396r(c)(2)(B)-(D); (2) a declaration that Defendant’s refusal to admit Plaintiff

into the facility violated N.J.A.C. 8:43-4.13; (3) a declaration that Defendant’s refusal to admit
Plaintiff into the facility violated Plaintiff’s rights to due process under the Fifth and Fourteenth
Amendments; (4) a declaration that Defendant “acted with willful and wanton disregard for the
Plaintiffs welfare or safety;” (5) damages for the additional costs of lodging, transportation, and
medical care; and (6) compensatory and punitive damages, as well as statutory fines and penalties.
(ECF No. 30 at 5-6). Defendants filed an opposition arguing that Plaintiff was properly discharged
and that they had no obligation to re-admit him. (ECF No. 31). Plaintiff filed a reply in which he
seeks to strike portions of Defendant’s brief, and in which he argues that he was improperly

discharged by Defendant under applicable Medicaid regulations and state law. (ECF No. 32 at 12). In that reply, Plaintiff also requested an order allowing him to return to the facility to his old
room “if he wishes to.” (ECF No. 32 at 10).
2

II.

LEGAL STANDARDS
A.

Preliminary Injunction

Preliminary injunctive relief, in the form of a temporary restraining order or a preliminary
injunction is an “extraordinary remedy” and “should be granted only in limited circumstances.”
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). The standard for granting a
temporary restraining order is the same as the standard for granting a preliminary injunction.
Frank’s GMC Truck Ctr.. Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988). In order to
be entitled to either, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) the
probability of irreparable harm; (3) the lack of harm to the other party; and (4) that the relief sought
is in the public interest. AIleheny Engery, Inc. v. DOE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). A
plaintiffs failure to establish any element in its favor renders a preliminary injunction
inappropriate. Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dept. of Health and Human
Serv., 724 F.3d 377, 382 (3d Cir. 2013).
B.

Standard For Reviewing Pro Se Filings

Because Plaintiff is apro se litigant, his filings are entitled to a liberal construction. Diuhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). This Court therefore has a special obligation to
discern both the nature of the relief and the appropriate law to govern his request. Id.
111.

DISCUSSION
A

Plaintiff’s Application

Though Plaintiffs application (ECF No. 30) is styled as a request for a preliminary
injunction. Plaintiffs requested relief appears to be for summary judnent on the merits of his
claims. Further, it appears that Plaintiff no longer claims a need for emergent relief, seeking money

damages for the alleged harms, and to return to his room at the facility only “if he wishes to.’ (ECF
3

No. 30 at 5-6; ECF No. 32 at 10). With respect to the money damages. Plaintiff does not claim
irreparable harm because he has presented nothing “uniquely threating” about his particular loss
of money. Adams v. Freedom Forge Corp., 204 F.3d 475, 485 (3d Cir. 2000) (reversing district
court preliminary injunction as to some plaintiffs when those plaintiffs had not presented evidence
that increased costs absent an injunction would cause them hardship). With respect to the return to
his room, although Plaintiff claims that the removal from his room harmed him, he does not state
unequivocally that he wishes to return, or that a failure to return is causing him irreparable harm.
Id. at 488 (“the risk of irreparable harm must not be speculative”). Accordingly, the Court finds an
absence of irreparable harm.
Because there is no irreparable harm absent a preliminary injunction,

“[ut is unnecessary

for the Court to address the remaining factors in the injunctive relief analysis.” Tillery v. Hayman,
No. 07-2662, 2008 WL 5416392, *3 (D.N.J. Dec. 22, 2008). Indeed, the Third Circuit recently
reaffirmed that a “plaintiffs failure to establish any element in its favor renders a preliminary
injunction inappropriate.” Contestoga, 724 F.3d at 382.
Accordingly, the court will deny Plaintiffs application for a preliminary injunction. (ECF
No. 30). However, the Court will give Plaintiff leave to file an Amended Complaint to include
allegations arising out of the facts described in his application. çç Daewoo Elec. Am. Inc., v.
LL.IndjH.Holdins, 2008 WL 5136937, at *3 (D.NJ. Dec. 5.2008) (citing U.S. S.E.C.
v. infinity Grp. Co.. 212 F.3d 180, 197 (3d Cir. 2000) (“Matters of docket control and scheduling

are within the sound discretion of the district court.”).
B,

Plaintiffs Motion To Strike

Plaintiff also seeks to strike Defendant’s characterization of the dispute in Defendant’s
briefing. (ECF No. 32

¶

3). Under Rule 12(f) a party may move to “strike from a pleading an
4

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court has
considerable discretion in deciding a motion to strike. Jones v. U.S., No. 10-cv-3502, 2012 WL
2340096, at *2 (D.N.J. June 18, 2012) (quotations omitted). Motions to strike are disfavored and
will be denied “unless the allegations have no possible relation to the controversy and may cause
prejudice to one of the parties. or if the allegations confuse the issues in the case.” In re Schering
Plough Corp./Enhance Sec. Litig, No. 08-cv-397, 2009 WL 1410961, at *1 (D.N.J. May 19,
2009). Although Rule 12(f) applies to pleadings, it has been applied using this standard to other
documents by other courts in this district. See Jones, 2012 WL 2340096, at *2. However, it has
also been held that a brief is not a “pleading” which is properly the subject of a motion to strike.
Rivera v. U.S., No 12-cv-1339, 2013 WL 826396, at *1 (M.D.Pa. April 30, 2013), see also Hrubec
v. Nat’l R.R. Passenger Corp., 829 F.Supp. 1502, 1506 (N.D.I11. 1993); Rule 7(a) (listing pleadings
allowed).
In any event, the court finds that it has not been shown that the assertions in Defendant’s
brief are irrelevant, cause prejudice, or confuse the issues in this case. Accordingly, Plaintiffs
motion to strike is denied.
IV.

CONCLUSION

Plaintiffs motions are denied. Plaintiff shall be given leave to amend his Complaint. An
appropriate order accompanies this opinion.
DATED:

v”-,
CLAIRE C. CECCHI, U.S,D,J,