Opinion
Case No. 20-2374-SAC-JPO
2021-01-27
Lane HATCHER, individually and in a representative capacity for all persons identified by K.S.A. 60-1902; and as Special Administrator of the Estate of Amanda Annette L'heureux, Plaintiffs, v. HCP PRAIRIE VILLAGE KS OPCO LLC and Sunrise Senior Living Management, Inc., Defendants.
Kevin L. Chaffee, Jonathan T. Steele, Steele Chaffee, LLC, Kansas City, MO, for Plaintiffs. Amy Miller, Pro Hac Vice, Buchanan Ingersoll & Rooney, PC, Washington, DC, Barbara K. Christopher, Matthew Klose, Richard M. Acosta, Robert J. Givens, Horn, Aylward & Bandy, LLC, Kansas City, MO, Charlie C.H. Lee, Pro Hac Vice, Kristen a. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Harold Eric Hilton, Pro Hac Vice, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, for Defendants.
Kevin L. Chaffee, Jonathan T. Steele, Steele Chaffee, LLC, Kansas City, MO, for Plaintiffs.
Amy Miller, Pro Hac Vice, Buchanan Ingersoll & Rooney, PC, Washington, DC, Barbara K. Christopher, Matthew Klose, Richard M. Acosta, Robert J. Givens, Horn, Aylward & Bandy, LLC, Kansas City, MO, Charlie C.H. Lee, Pro Hac Vice, Kristen a. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Harold Eric Hilton, Pro Hac Vice, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, for Defendants.
ORDER
Sam A. Crow, U.S. District Senior Judge
This is a diversity action alleging state law claims of wrongful death and pain and suffering. The case is before the court upon a motion to dismiss the amended complaint and a motion to dismiss a counterclaim. This matter involves an injury to and the alleged wrongful death of a skilled nursing facility resident, Amanda Annette L'heureux. The nursing facility ("Brighton Gardens") is owned and/or operated by defendants. This case is brought on behalf of L'heureux’s heirs and L'heureux’s estate.
Plaintiffs allege that Amanda L'heureux ("decedent") died from COVID-19 on April 26, 2020. According to the amended complaint, the decedent was a resident at Brighton Gardens from January 2, 2019 through April 24, 2020. She suffered a broken hip, allegedly due to defendants’ negligence, on January 15, 2019. She began to show COVID-19 symptoms on April 14, 2020 and tested positive on April 16, 2020. She was transferred to a hospital on April 24, 2020 and died two days later.
I. Defendants’ motion to dismiss – Doc. No. 36
Defendants’ major argument to dismiss this case is that defendants are immune or otherwise have a defense against this action under the federal Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. § 247d-6d. Immunity is not available in cases of willful misconduct which involves the administration or use of covered pandemic countermeasures, but pursuant to 42 U.S.C. § 247d-6d(e)(1) such cases must be brought in the United States District Court for the District of Columbia after there has been an exhaustion of remedies available under 42 U.S.C. § 247d-6e(a). For injuries from the administration or use of countermeasures that does not involve willful misconduct, resort must be made to a "Covered Countermeasure Process Fund" whose decisions are not subject to judicial review. 42 U.S.C. §§ 247d-6e(a) & 247d-6e(b)(5)(C). The PREP Act preempts different or conflicting state laws. 42 U.S.C. § 247d-6d(b)(8).
Defendants have not denied the alleged facts supporting diversity jurisdiction under 28 U.S.C. § 1332. Defendants assert that the court may consider their motion under either Fed.R.Civ.P. 12(b)(1) or Fed.R.Civ.P. 12(b)(6). The court finds that the immunity argument advanced by defendants is in the nature of a defense against suit and liability; not a jurisdictional defense. Therefore, the court shall apply the standards of Rule 12(b)(6) in this order.
See Nevada v. Hicks, 533 U.S. 353, 373, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) ("no authority for the proposition" that absolute and qualified immunity defenses are jurisdictional issues); Hecht v. United Jewish Federation of Tidewater, Inc., 2019 WL 237394 *1 n.1 (E.D. Va. 1/16/2019) (considering ERISA preemption question under 12(b)(6)); Butcher v. Teamsters Local 955, 2018 WL 6200027 *2-3 (D. Kan. 11/28/2018) (treating federal labor law preemption issue as one under 12(b)(6) not 12(b)(1)); Powers v. U.S., 2018 WL 8345149 *5 n.2 (E.D. Mich. 9/10/2018) (a motion to dismiss based on preemption is decided under 12(b)(6)); see generally, Arbaugh v. Y&H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (warning against "profligate" use of the term jurisdiction and holding that statutory limitations on "employers" covered by Title VII are not jurisdictional).
Defendants request oral argument and/or a jurisdictional hearing as part of their motion. The court shall decline the request because the court believes this matter should be considered as a Rule 12(b)(6) motion and because the court is not convinced that oral argument and a hearing would substantially assist the court in deciding the motions before it.
A. Rule 12(b)(6) standards
Under Rule 12(b)(6), the court must determine whether the complaint contains "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In doing so, the court views the factual allegations "in the light most favorable" to plaintiffs. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) ). Plaintiffs must " ‘nudge their claims across the line from conceivable to plausible’ in order to survive a motion to dismiss." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). The right to relief described in the complaint must rise above the speculative level. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The court's interpretation of the complaint is a "context specific task" upon which the court may apply "its judicial experience and common sense," Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
B. The amended complaint's allegations
The amended complaint alleges, generally speaking, that the skilled nursing facility was undercapitalized and understaffed and that it engaged in negligent and reckless practices which caused the decedent's broken hip, her contraction of COVID-19, and her death. The complaint characterizes defendants’ actions as "malicious, wanton, grossly negligent and reckless, and performed in reckless disregard of the welfare and safety of Decedent and others." Doc. No. 32, ¶¶ 79, 92, 105, 118. More specifically, the complaint alleges negligence in the following respects:
a. failing to timely, consistently and properly assess and document decedent's physical condition;
b. failing to adequately assess decedent's risk of falling and infection;
c. failing to adequately supervise and/or intervene to address decedent's risk of falling and infection;
d. failing to provide adequate nursing staff to ensure 24-hour protective oversight and supervision;
e. failing to properly supervise and train employees, agents and/or servants responsible for decedent's care and treatment;
f. failing to provide competent and qualified staff;
g. failing to provide adequate staff training regarding the prevention of falls and infection;
h. failing to provide adequate staff supervision regarding the prevention of falls and infection;
i. failing to provide adequate assistive devices to prevent injuries and infection;
j. failing to enact and carry out an adequate plan in regard to decedent's risk for falls and infection;
k. failing to timely report to a physician changes in decedent's condition;
l. failing to carry out decedent's physician's instructions;
m. failing to adequately, timely and consistently prevent, assess, and treat decedent's risk for falls and infection;
n. failing to timely transfer decedent to a facility that could provide adequate care;
o. failing to have or implement appropriate policies and procedures regarding the prevention, assessment and treatment of residents at risk for falls and infection;
p. failing to carry out and follow standing orders, instructions and protocol regarding the prevention of falls and infection.
q. failing to have a sufficient number of staff; and
r. failing to ensure the nursing home was properly capitalized.
See Doc. No. 32, ¶¶ 76, 102, and 115.
Plaintiffs also allege that defendants: failed to adequately clean and disinfect common areas; allowed the repeated use of an unsanitary thermometer on employees; and allowed staff to work who did not record a temperature, had potential COVID-19 symptoms, or admitted they did not follow infection control protocols outside of work. Id. at ¶ 66. Plaintiffs claim as well that there was a lack of staff to provide proper supervision, planning, training and intervention to prevent the decedent from falling and fracturing her hip. Id. at ¶ 65.
There are four counts in the amended complaint. Count One alleges a wrongful death claim against defendants. Count Two states an "alter ego" claim against defendant Sunrise Senior Living Management. In Count Three, plaintiff Estate of Amanda Annette L'heureux alleges a pain and suffering claim related to the decedent's wrongful death. In Count Four, the Estate alleges a negligence claim for pain and suffering related to the decedent's fractured hip.
Plaintiffs state in response to defendants’ motion to dismiss that they do not assert:
any theory of liability that is in any way related to the Defendants’ "physical provision" of anything, be it drug, device, or other "countermeasure." Rather, Plaintiffs’ claims are based on Defendants’ failure to implement and execute an effective infection control program that included proper training of their employees, screening of employees for symptoms of COVID-19 before they were allowed to enter the facility, separating residents suspected of having the infection from non-infected residents, and enforcing social distancing protocols.
Doc. No. 37, p. 8.
C. Arguments
Defendants argue that they are immune from liability in this court under the PREP Act and further shielded from liability under Kansas Executive Order 20-26 and state COVID-19 legislation. Defendants also contend separately that any claims concerning the decedent's January 2019 fractured hip do not state a plausible claim for her alleged wrongful death in April 2020.
1. PREP Act immunity
In considering the PREP Act, the court is mindful of the principles of statutory interpretation reviewed by Judge Teeter in her recent opinion regarding the PREP Act:
the first step [in interpreting a statute] is to look at its "plain and unambiguous meaning." Robinson v. Shell Oil Co., 519 U.S. 337, 340 [117 S.Ct. 843, 136 L.Ed.2d 808] (1997). If the language is unambiguous, the analysis stops. Id. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341 .
Fortune v. Big Blue Healthcare, Inc., 2020 WL 4815097 *3 (D. Kan. 8/19/2020).
As explained at n.1 of Fortune, that case was one of twelve cases stemming from COVID-19 deaths at a care facility. The cases were filed in state court and removed to federal court. Judge Teeter granted motions to remand the cases finding that the PREP Act was not applicable to the plaintiffs’ allegations.
a. PREP Act provisions
The PREP Act's immunity section states in part:
Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection(b) has been issued with respect to such countermeasure.
42 U.S.C. § 247d-6d(a)(1). This provision:
applies to any claim for loss that has a causal relationship with the administration
to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.
The Secretary of Health and Human Services has invoked the provisions of the PREP Act by declaring that COVID-19 constitutes a public health emergency. Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (Mar. 10, 2020).
The PREP Act defines "covered countermeasure" as a "qualified pandemic or epidemic product," "a security countermeasure," and certain approved or licensed drugs, biological products or devices. 42 U.S.C. § 247d-6d(i)(1). A "qualified pandemic or epidemic product" must be used, designed, modified or procured to mitigate, prevent, treat or cure a pandemic or epidemic. 42 U.S.C. § 247d-6d(i)(7)(A). All such products, security countermeasures, drugs and devices must be approved, cleared, authorized or licensed under the law.
A "security countermeasure" is defined at 42 U.S.C. § 247d-6b(c)(1)(B) and does not appear relevant here. It involves a drug, biological product or device to diagnose or combat biological, chemical, radiological or nuclear agents identified as a material threat by the Homeland Security Secretary.
The Advisory Opinion 20-04 from the Department of HHS (Doc. No. 36, Ex. K, p. 2) states that a " ‘covered countermeasure’ generally includes products (1) that the Food and Drug Administration has approved, cleared, licensed, or authorized for emergency or investigational use; and (2) that are used to address COVID-19 or associated health threats, including harms that COVID-19 might otherwise cause."
A "covered person" includes a "distributor" or a "program planner" of a "covered countermeasure" and agents or employees thereof. 42 U.S.C. § 247d-6d(i)(2)(B)(ii), (iii) & (v).
In sum, the immunity provisions of the PREP Act bar state and federal law actions in this court to recover from a loss caused by, arising out of, relating to, or resulting from a covered person's use or administration of a covered countermeasure. A "covered countermeasure" could be a wide number of approved drugs, biological products and devices. "Use" or "administration" includes the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of a covered countermeasure. In cases of willful misconduct, a lawsuit may be brought, but only in the United States District Court for the District of Columbia.
See Advisory Opinion from the Department of HHS (Doc. No. 36, Ex. H, p. 4), noting that the products "that are approved, licensed or cleared are too numerous to list."
b. Causation by or relation to administration or use of a covered countermeasure
The court shall assume for the purposes of this order that under some circumstances defendants could meet the definition of a "covered person" immune from liability pursuant to the PREP Act. Plaintiffs, however, have plausibly alleged facts describing a loss which is not caused by or related to and does not arise out of or result from the administration or use of a "covered countermeasure." That kind of loss is not subject to PREP Act immunity. Defendants make numerous arguments to the contrary which are not persuasive.
First, defendants suggest that plaintiff's allegations involve "covered countermeasures." Defendants note that plaintiffs expressly plead the use of COVID-19 diagnostic tests, disinfectants, and thermometers, which may likely be "covered countermeasures." This is not confirmed in the pleadings and exhibits before the court. But, even if it were, plaintiffs’ allegations by and large do not describe a loss caused by or relating to the administration or use of diagnostic tests, disinfectants and thermometers. The PREP Act does not extend immunity to any "covered person," like a long-term care facility, that uses a "covered countermeasure," like a diagnostic test or PPE, regardless of how the loss at the facility was caused, resulted or arose. Rather, the loss must be "caused by, aris[e] out of, relat[e] to, or result[ ] from the administration to or the use by an individual of a covered countermeasure." 42 U.S.C. § 247d-6d(a)(1).
In the amended complaint, plaintiffs allege, for instance, that the facility failed to adequately clean and disinfect common areas; that staff who felt ill or had symptoms were allowed to work; that decedent's physical condition was not properly assessed; that the facility did not have sufficient staff; that staff was not properly trained; that safety protocols were not carried out; that doctor's instructions were not carried out; and that the decedent was not timely transferred to a facility that could provide adequate care. At this stage, the court cannot conclude that these allegations describe causation by or relation to the administration or use of a covered countermeasure as defined in the PREP Act.
Second, defendants note that the amended complaint acknowledges infection control procedures at the facility, and defendants appear to imply that the PREP Act extends immunity to losses related to the administration of infection control procedures. To reiterate, defendants must show that the amended complaint alleges a loss caused by or related to the administration or use of a covered countermeasure. Plaintiffs’ acknowledgement of certain "infection control procedures," as elaborated upon by defendants, does not make this showing.
Third, defendants cite the Declaration at 85 Fed.Reg. at 15,200 and argue that "administration of covered countermeasures" should be broadly construed to immunize defendants from the claims described in the amended complaint. Doc. No. 36, pp. 21-22. "Administration of Covered Countermeasures" is defined in the Declaration as:
physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.
85 Fed.Reg. at 15,202. The Declaration further explains that this definition:
extends only to the physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities.
85 Fed.Reg. at 15,200. Thus, as explained by the Secretary, immunity is applied to a slip and fall in a vaccination line at a retail store, but not to every slip and fall at the retail store regardless of the connection to the distribution of a covered countermeasure. Id. There must be a "direct connection to the countermeasure's administration or use." Id. Such a "direct connection" is not apparent in the amended complaint.
Defendants insist that because the facility used infection control procedures that involved countermeasures, all actions or "non-actions" related to infection control are protected by PREP Act immunity. This appears to be an overly broad interpretation of the statute. Defendants do not explain, for instance, how the failure to quarantine symptomatic staff and the failure to apply social distancing guidelines are necessarily related to the management and operation of a program and location for the provision of drugs or devices or products to mitigate the virus.
Fourth, defendants suggest that PREP Act immunity applies to the amended complaint's allegations because the facility was engaged in a "recommended activity" authorized by a federal, state or local agency as part of an emergency response to the pandemic. Defendants cite the Advisory Opinion of April 17, 2020 from the Department of HHS (Doc. No. 36, Ex. H, p. 2) to support this argument. This document makes clear, however, that all the requirements of the PREP Act must be met. Id. Defendants do not show that those requirements are satisfied from the allegations of the amended complaint. In addition, defendants do not establish that the alleged negligent conduct constitutes a "recommended activity" or is consistent with guidance from a governmental agency in response to the pandemic.
Finally, defendants contend that " ‘Recommended Activities’ can include non-use or non-administration (inaction)." Doc. No. 36, p. 23. One authority defendants cite as support is a heading within the PREP Act - "Defense for acts or omissions taken pursuant to Secretary's declaration" at 42 U.S.C. § 247d-6d(c)(4). This section states that a program planner or qualified person shall not have engaged in "willful misconduct" by actions taken consistent with applicable directions, guidelines or recommendations by the Secretary regarding the administration or use of a covered countermeasure. Defendants do not contend that this provision directly applies to warrant the dismissal of this action. Rather, defendants’ position appears to be that their conduct as described in the complaint falls under the general rubric of "recommended activities" for which immunity is conferred by the PREP Act. But, at this point, assuming the truth of the amended complaint's allegations, the court is not persuaded defendants’ participation in vaguely described recommended activities is sufficient to demonstrate that plaintiffs’ loss was caused by or related to the administration or use of a covered countermeasure.
Defendants also cite the April 17, 2020 Advisory Opinion (Doc. No. 36, Ex. H, p. 7) which refers to the same statutory section.
Defendants also cite an amendment to the Declaration (Doc. No. 36, Ex. B), Advisory Opinion 20-04 (Doc. No. 36, Ex. K), and Advisory Opinion 21-01 (Doc. No. 38, Ex. D) to claim that non-use or non-administration of covered countermeasures may fall within the PREP Act's immunity provisions. The court is not convinced from this guidance that the PREP Act covers the failures described in the amended complaint for the following reasons. The amendment to the Declaration and Advisory Opinion 21-01 each discuss a situation in which a product was not distributed or administered strategically because of a shortage or as a matter of prioritization. Plaintiffs’ allegations do not appear to claim that decedent's death was caused by a decision to ration a covered product or allocate a covered countermeasure to some but not others. Nor do plaintiffs’ allegations seem analogous. Similarly, defendants’ citation to Advisory Opinion 20-04 (Doc. No. 36, Ex. K at p. 7) is unconvincing. Plaintiffs are not alleging an injury from a failure to protect against a slip and fall or a lapse in security during the administration of a covered countermeasure as alluded to in Advisory Opinion 20-04.
Also, Advisory Opinion 20-04 indicates on p. 6 that a grocery store that did not use masks in all circumstances required by the store's county department of health would not have PREP Act immunity against a claim that the failure to follow the county guideline contributed to a loss.
For the above-stated reasons, the court shall not dismiss plaintiffs’ claims on the basis of PREP Act immunity at this stage in the proceedings. The court further notes that Judge Teeter took a comparable position in Fortune, 2020 WL 4815097 at *7-8 where she found that the PREP Act was inapplicable to claims against an adult care facility.
Plaintiff in Fortune alleged negligence by the defendants failing to: follow proper infection control protocols and guidelines; ensure that workers were not working with COVID-19 symptoms; provide personal protective equipment to staff; separate those with symptoms from those without; adhere to social-distancing guidelines; respond to the presence of COVID-19 in the facility; timely request additional staff and assistance from public health entities; protect, supervise, and provide 24-hour care; properly supervise and train staff; follow standing orders, instructions, and protocol regarding COVID-19; and provide adequate interventions. 2020 WL 4815097 at *1.
2. Kansas law
Defendants claim that the amended complaint should be dismissed because the provisions of Executive Order 20-26 issued by the Governor of Kansas on April 22, 2020 granted immunity from suit to all health care providers and support personnel except in cases of "willful misconduct, gross negligence, recklessness, or bad faith of such facility or health care provider." Doc. No. 14, Ex. O, pp. 4-5. Plaintiffs allege that the immunity provisions of the executive order have been abrogated retroactively by the COVID-19 Response and Reopening for Business Liability Protection Act, K.S.A. 60-5501 et seq., and that, in any event, the amended complaint alleges gross negligence and recklessness by defendants. Defendants respond that the COVID-19 Response Act also sets out an affirmative defense for adult care facilities that act in compliance with state statutes, rules, regulations and public health directives. See K.S.A. 60-5506.
The court finds that plaintiffs’ allegations are sufficient at this stage to describe a plausible claim of gross negligence and recklessness. Therefore, the court rejects defendants’ contention that the Executive Order immunizes defendants from liability against plaintiffs’ claims. The court further finds that an affirmative defense under K.S.A. 60-5506 is not so obvious that plaintiffs have failed to state a claim. 3. Fractured hip and wrongful death
The court does not reach the issue of whether the provisions of the Executive Order have been abrogated by the COVID-19 Response Act.
Ordinarily an affirmative defense can provide the basis for dismissal under Rule 12(b)(6) "only when the complaint itself admits all the elements of the affirmative defense by alleging the factual basis for those elements." Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018).
The amended complaint alleges that defendants’ negligence caused decedent to fracture her hip which led to surgeries and a loss of mobility which directly increased the decedent's risk of contracting COVID-19 and contributed to her death. Doc. No. 32, ¶¶ 2-11. Defendants assert that the amended complaint does not allege facts making a plausible claim that the defendants’ actions leading to the fractured hip were a proximate cause of the decedent's death from COVID-19. This is a matter for the court to consider on the basis of "judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. The court is aware that immobility is arguably a COVID-19 risk factor. See U.S. v. Walls, 2020 WL 6390597 *9 (W.D. Pa. 11/2/2020) ; Malam v. Adducci, 2020 WL 1934895 *4-5 (E.D. Mich. 4/22/2020). At this point, the court shall decline to find that the amended complaint's fractured hip allegations fail to state a plausible claim for wrongful death.
II. Motion to dismiss counterclaim – Doc. No. 15
Defendants filed a stand-alone counterclaim seeking a declaratory judgment. Doc. No. 7. Defendants have not filed an answer. Plaintiffs have filed a motion to dismiss the counterclaim. Doc. No. 15.
Although plaintiffs’ motion does not raise this issue, the court shall direct that the counterclaim be dismissed without prejudice because it was not asserted in a "pleading" as required by Fed.R.Civ.P. 13(a). A "pleading" is confined in Fed.R.Civ.P. 7(a) to complaints, answers and replies to an answer.
This court and others have dismissed counterclaims on this basis in other cases. E.g., Thanh v. Tran, 2018 WL 4944992 *1 (C.D. Cal. 1/25/2018) (citing cases); Hale v. Emporia State University, 2016 WL 3277264 *11 (D. Kan. 6/15/2016) (citing cases); Sevi v. Israel Discount Bank of New York, 2014 WL 12861831 *2 (S.D. Fla. 7/8/2014) (citing cases).
III. Conclusion
For the above-stated reasons, defendants’ motion to dismiss at Doc. No. 36 is denied and plaintiffs’ motion to dismiss at Doc. No. 15 is granted. Defendants’ counterclaim is dismissed without prejudice.