Nesiama-Gbenedio v. Kindred Hospital North Campus

Filing 16

ORDER GRANTING 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and, Alternatively, Rule 12(e) Motion for More Definite Statement. Plaintiff shall file proof of service to Kindred Hospital North Campus within twenty (20) days of the date of this order. If she fails to do so or if she serves an entity other than the entity named in her complaint, her claims will be dismissed. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CAROLINE NESIAMA -GBENEDIO ,
Plaintiff,
vs.
KINDRED HOSPITAL NORTH CAMPUS,
Defendant.

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CIVIL ACTION H-13-740

ORDER
Pending before the court is defendant Kindred Hospitals Limited Partnership’s (“Kindred
Limited”) Rule 12(b)(6) motion to dismiss for failure to state a claim. Dkt. 13. On January 9, 2014,
the court ordered plaintiff Nesiama-Gbenedio to file proof that she served the defendant named in
her lawsuit within twenty days of the date of the order or risk dismissal. Dkt. 10. NesiamaGbenedio filed proof of service within the required timeframe. Dkt. 11. However, upon further
inspection, the proof of service indicates that Nesiama-Gbenedio served Kindred Limited rather than
the named defendant, Kindred Hospital, North Campus. Compare Dkt. 1 (complaint against Kindred
Hospital North Campus); Dkt. 10 (order to file proof of service relating to complaint against Kindred
Hospital North Campus); and Dkt. 11 (proof of service to Kindred Hospitals Limited Partnership).
Unsurprisingly, Kindred Limited, which is not named in the complaint, now moves for dismissal.
In the motion, Kindred Limited argues that Kindred Limited is not mentioned anywhere in
the complaint or supporting documents filed by Nesiama-Gbenedio. Id. Kindred Limited also
attaches public records, which the court may take judicial notice of, that indicate that an entity other
than Kindred Limited operates Kindred Hospital, North Campus. Dkt. 13, Exs. A-C.

Nesiama-Gbenedio did not respond to Kindred Limited’s motion to dismiss. Under Southern
District of Texas Local Rule 7.4, “[f]ailure to respond [to a motion] will be taken as a representation
of no opposition.” S.D. Tex. L.R. 7.4. Thus, the court treats Kindred Limited’s motion as
unopposed. Kindred Limited’s motion to dismiss (Dkt. 13) is GRANTED, and any claims inferred
by serving the complaint to Kindred Limited are DISMISSED WITH PREJUDICE.
Since Nesiama-Gbenedio served the wrong defendant, the court again NOTIFIES NesiamaGbenedio that she must file adequate proof of service in order to maintain her claim. NesiamaGbenedio shall file proof of service to Kindred Hospital North Campus within twenty (20) days of
the date of this order. If she fails to do so or if she serves an entity other than the entity named in
her complaint, her claims will be dismissed.
Signed at Houston, Texas on March 12, 2014.

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Gray H. Miller
United States District Judge

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