This matter comes before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Memorandum in Support Thereof (Doc. #31) filed on November 4, 2010. Plaintiff filed a Response and Motion to Amend Pre-Removal Complaint (Doc. #45) on December 13, 2011. Plaintiff has, however, already amended the pre-removal complaint (Doc. #2) and filed an Amended Complaint (Doc. #29-1) which is the subject of defendants' motion. Thus, the Court will deny plaintiff's motion to amend as moot and consider only plaintiff's response to defendants' motion to dismiss.
In the Amended Complaint, plaintiff, Ronald Gilmore, as personal representative of the estate of Vera Gilmore, alleges that: Vera Gilmore (Ms. Gilmore) was a resident at defendant's long term nursing home facility, operating under the name Life Care Center of Estero (LCCE). (Doc. #29-1, ¶2.) Plaintiff also names Life Care Centers of American, Inc., Life Care Centers of America, Inc. of Tennessee, and Lee County Medical Investors, LLC as defendants and alleges that they acted as a joint venture or enterprise with LCCE. (Id., ¶4.) On or about October 26, 2007, Ms. Gilmore died as a result of a fall sustained at LCCE. The cause of her death, plaintiff alleges, was defendants' failure to "properly diagnose, treat and monitor her condition to prevent the fall." (Id., ¶11.) Plaintiff goes on to state that at all material times Ms. Gilmore was observed to be disoriented, having difficulty walking or standing and at risk for fall and that Healthpark Care Center, Inc. (Healthpark) staff and nursing employees were aware of Ms. Gilmore's condition. Plaintiff does not explain Healthpark's connection to any of the named defendants. Plaintiff then states that LCCE's treatment of Ms. Gilmore was below the accepted standard of care in "this and similar medical communities in like and similar circumstances," but states no facts which support this allegation.
In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pleaded factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). "To survive dismissal, the complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed." James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). The former rule--that "[a] complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief," La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)--has been retired by Twombly. James River Ins. Co., 540 F.3d at 1274. Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The Court need not accept as true legal conclusions or mere conclusory statements. Id.
Plaintiff alleges two counts in the Amended Complaint: Negligence (Count One) and Negligence Per Se (Count Two).
Florida Statutes §§400.023-400.0238 provide the exclusive remedy for the personal injury or death of a nursing home resident arising out of negligence or a violation of rights specified in that chapter. Thus, to state a claim for negligence against Ms. Gilmore's nursing home, plaintiff must allege:
(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident;
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
(d) The resident sustained loss, injury, death, or damage as a ...