Opinion
Civil Action 6:24-cv-3707-DCC-KFM
10-24-2024
Joel G. Johnson, Plaintiff, v. Rotech Healthcare Inc. d/b/a Home Medical Systems d/b/a American Health Services, Defendant and Third-Party Plaintiff v. Jane Doe and John Doe Corporation, Third-Party Defendants
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the motion to dismiss third-party complaint (doc. 27) and motion to strike third-party complaint (doc. 32) filed by the plaintiff, who is proceeding pro se in this matter. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
I. BACKGROUND
The plaintiff filed a complaint in the Greenville County Court of Common Pleas on May 10, 2024, naming as the sole defendant American Health Services, which he alleges leases and/or sells durable medical equipment (doc. 1-1 at p. 2). The plaintiff alleges a cause of action for gross negligence arising from injuries he allegedly received when his wheelchair, which he received from American Health Services, “suddenly flipped backward slamming plaintiff's head into the ground” (id. at p. 3). The plaintiff seeks $250,000 in compensatory damages and $250,000 in punitive damages (id. at p. 4).
On June 27, 2024, defendant Rotech Healthcare Inc., d/b/a Home Medical Systems, Inc., d/b/a American Health Services removed the case to this court based on diversity jurisdiction (doc. 1). The plaintiff filed a motion to remand on July 24, 2024 (doc. 16), and the undersigned recommended that the district court deny the motion to remand on August 15, 2024 (doc. 23). That report and recommendation is pending before the district court.
The plaintiff originally filed the complaint against “American Health Services” (doc. 1-1). On July 1,2024, the defendant filed a motion to substitute party, asking that the court substitute Rotech Healthcare Inc. d/b/a Home Medical Systems d/b/a American Health Services as the proper defendant in this action (doc. 6), and the undersigned granted this motion on July 2, 2024 (doc. 9).
On July 1,2024, the defendant filed an answer to the plaintiff's complaint with a third-party complaint alleging a cause of action for negligence/gross negligence against John Doe Corporation, a home healthcare company, and Jane Doe, who was John Doe Corporation's agent or employee and a home healthcare aid (doc. 7 at ¶¶ 45, 57-58). The defendant alleges that Jane Doe worked as the plaintiff's home healthcare aid and that the plaintiff was under John Doe Corporation's and Jane Doe's care when his alleged injuries occurred (id. at ¶¶ 47, 57-58). The defendant further alleges that Jane Doe was either not present or not paying attention to the plaintiff when he fell out of his chair and that Jane Doe should have been aware of the plaintiff's previous falls and should have been observing him at all times (id. at ¶¶ 57-58). The defendant alleges that John Doe Corporation and Jane Doe were negligent, grossly negligent, wanton, reckless, and/or willful, and that the defendant has been damaged by the exposure to a potential judgment and the cost of defending the plaintiff's lawsuit (id. at ¶¶ 64, 66). The defendant further claims that John Doe Corporation and Jane Doe solely caused the plaintiff's alleged injuries (id. at ¶ 55).
On August 29, 2024, the plaintiff filed a motion to dismiss the third-party complaint (doc. 27), and a supplement to his motion on September 5, 2024 (doc. 29). In his motion to dismiss, the plaintiff asserts a number of extraneous factual allegations (doc. 27 at p. 2). The plaintiff argues that this court should dismiss the defendant's third-party complaint because the defendant lacks standing and, specifically, paragraph 56fails to assert any allegations of injury (doc. 27 at pp. 2-3; doc. 29 at p. 2). On September 12, 2024, the defendant filed a response, arguing 1) the third-party claim is proper and valid, 2) the plaintiff's motion was not timely filed, and 3) judicial economy supports the third-party claim (doc. 30).
Courts generally do not consider extrinsic evidence when evaluating the sufficiency of a complaint unless such evidence is integral to the complaint. Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014). A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5 C Wright & Miller, Federal Practice & Procedure § 1366 (3d ed. 2018). These bald allegations are not from the third-party complaint and are not supported with evidence. Because these allegations are not relevant to a 12(b) motion to dismiss or motion to strike, the undersigned did not consider them.
Despite the plaintiff's focus on paragraph 56, in reviewing a Rule 12 motion to dismiss, the court reviews the complaint in its entirety. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.”).
The defendant filed its answer to the plaintiff's complaint with third-party complaint on July 1, 2024 (doc. 7) and mailed it to the plaintiff on July 2, 2024 (doc. 14 at ¶ 2). The plaintiff did not file his motion to dismiss until 58 days later on August 29, 2024 (doc. 27) and did not file the motion to strike until 80 days later on September 20, 2024 (doc. 32). While the plaintiff filed his two motions significantly later than the 21 days provided under Federal Rule of Civil Procedure Rule 12(a)(1)(A)(I), the undersigned will nonetheless address them on their merits. See Lance v. I.R.S., No. 2:03-2857-08BD, 2004 WL 1192122, at *1 (D.S.C. Apr. 13, 2004), R&R adopted by 2004 WL 1418633 (D.S.C. May 7, 2004) (referring to a Rule 12 motion to dismiss as a “responsive pleading” that is subject to the filing deadlines therein).
On September 20, 2024, the plaintiff filed a motion to strike the third-party complaint (doc. 32). In support, he proffered the same argument about standing as in his prior motion to dismiss (id. at pp. 2-4). The defendant filed a response on October 4, 2024 (doc. 33). Accordingly, these matters are now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Motion to Dismiss
“‘The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.'” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a “‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). When it appears that the plaintiff has totally failed to state a claim which would entitle him or her to relief, a defendant is entitled to have its motion to dismiss granted. Fed.R.Civ.P. 12(b)(6).
Pro se litigants are held to a less stringent standard than that of attorneys. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). However, principles requiring generous construction of Pro se filings do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Federal Rule of Civil Procedure 14(a) governs third-party practice. It provides:
A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.Fed. R. Civ. P. 14(a)(1). “Courts are granted wide discretion in determining whether to permit such third party procedure.” Johnson v. M.I. Windows & Doors, Inc., No. 2:11-CV-0167, 2012 WL 1015798, at *2 (D.S.C. Mar. 23, 2012) (quoting United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (5th Cir.1967)). Courts consider the following two elements when determining whether a third-party claim is permissible:
First, the non-party must be potentially liable to the third-party plaintiff. Second, the non-party's liability must relate to the plaintiff's claim against the defendant/third-party plaintiff such that the third-party defendant's liability arises only if the defendant/third-party plaintiff is first held liable to plaintiff.Tetra Tech EC/Tesoro Joint Venture v. Sam Temples Masonry, Inc., No. 3:10-CV-1597-CMC, 2011 WL 1048964, at *3 (D.S.C. Mar. 21, 2011). “Such a claim is viable only where a proposed third party plaintiff says, in effect, ‘If I am liable to plaintiff, then my liability is only technical or secondary or partial, and the third party defendant is derivatively liable and must reimburse me for all or part (one-half, if a joint tortfeasor) of anything I must pay plaintiff.'” M.I. Windows & Doors, Inc., 2012 WL 1015798, at *2 (quoting Watergate Landmark Condo. Unit Owners' Assn v. Wiss, Janey, Elstner Assocs., Inc., 117 F.R.D. 576, 578 (E.D. Va. 1987)). Also, permitting third-party claims promotes judicial economy by avoiding “‘circuity and multiplicity of actions.'” Endurance Am. Ins. Co. v. HAT Invs. LLC, No. 7:18-3162-HMH, 2019 WL 13096092, at *3 (D.S.C. Nov. 13, 2019) (quoting Noland Co. v. Graver Tank & Mfg. Co., 301 F.2d 43, 50 (4th Cir. 1962)).
Here, the defendant filed third-party claims against Jane Doe and John Doe Corporation for negligence and gross negligence (doc. 7 at ¶¶ 43-67). Accepting the well- pled allegations as true, Jane Doe and John Doe Corporation are potentially liable to the defendant if the defendant is found liable to the plaintiff (id. at ¶¶ 66-67). The defendant's claims against Jane Doe and John Doe Corporation derive from the plaintiff's claims against the defendant (id.). Allowing these third-party claims promote judicial economy by eliminating the need for separate actions. Therefore, the undersigned finds that these claims satisfy Rule 14.
In South Carolina, to prove negligence, a plaintiff must prove the following elements: (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty by the defendant, and (3) damages proximately resulting from the breach of duty. Hurst v. E. Coast Hockey League, Inc., 637 S.E.2d 560, 562 (S.C. 2006). The defendant alleges that Jane Doe and John Doe Corporation owed the plaintiff a duty to observe the plaintiff at all times while Jane Doe was present at the plaintiff's home and otherwise use reasonable care when caring for the plaintiff (doc. 7 at ¶¶ 62-63). The defendant avers that Jane Doe (and John Doe Corporation through vicarious liability) breached this duty by not being present and/or not paying attention to plaintiff (id. at ¶¶ 61,64-65). The defendant claims that it suffered damages due to its exposure to a potential judgment and the cost of defending the plaintiff's lawsuit (doc. 7 at ¶¶ 64, 66). Accepting all of these allegations as true, the defendant has alleged sufficient facts to support a claim for negligence that is plausible on its face.
Because the defendant removed this matter under diversity jurisdiction, this court must apply the substantive law of the state in which it sits. Williams v. GlaxoSmithKline LLC, No. 1:18-CV-01346-JMC, 2019 WL 211087, at *5 (D.S.C. Jan. 16, 2019) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
The defendant also makes a claim for gross negligence. “Gross negligence is defined as ‘the failure to exercise slight care.'” Doe v. Greenville Cnty. Sch. Dist., 651 S.E.2d 305, 309 (S.C. 2007) (quoting Steinke v. S. C. Dep't of Lab., Licensing & Regul., 520 S.E.2d 142, 153 (S.C. 1999)). “It has also been defined as ‘the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do.'” Id. Gross negligence is “‘the absence of care that is necessary under the circumstances.'” Id.
The defendant's gross negligence cause of action is woven with its negligence claim. The defendant asserts that, in addition to the negligence allegations, John Doe Corporation and Jane Doe were grossly negligent, wanton, reckless, and willful in failing to prevent the plaintiff from falling from his wheelchair while he was under their care, and this caused the defendant to suffer damages by expending costs to defend this lawsuit and the potential exposure to a judgment (doc. 7 at ¶ 66). This allegedly happened because Jane Doe either left the plaintiff alone or was not paying attention to him while he was under her care, and she should have had notice of the plaintiff's prior falls and should have been observing him at all times (id. at ¶¶ 61-62). At the pleading stage, the defendant has alleged enough plausible facts to state a prima facie case of gross negligence against John Doe Corporation and Jane Doe.
However, the plaintiff argues that the defendant lacks standing to bring its claims for negligence or gross negligence because it has failed to allege an injury in fact (doc. 27 at pp. 2-3). Article III standing requires, at a bare minimum, that a plaintiff allege “(1) an injury in fact (i.e., a ‘concrete and particularized' invasion of a ‘legally protected interest'); (2) causation (i.e., a ‘fairly . . . trace[able]' connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is ‘likely' and not merely ‘speculative' that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).” David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013) (quoting Sprint Commc'ns Co., L.P. v. APCC Serv., Inc., 554 U.S. 269, 273-74 (2008)). “To establish injury in fact, a plaintiff must show that he . . . suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992)). Standing requires that the plaintiff “‘personally has suffered some actual or threatened injury.'” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)).
Here, the plaintiff's argument that the defendant “simply state[s] that defendant Jane Doe should be held responsible for plaintiff's injuries because she was plaintiff's care giver” (doc. 27 at p. 2) is not accurate. The defendant alleges, inter alia, that Jane Doe failed to properly observe the plaintiff while he was under her care and that this failure was a proximate cause of his alleged injuries and damages (doc. 7 at ¶¶ 61-62, 65-67). The defendant further alleges that it suffered the actual injury of having to expend costs to defend against this lawsuit, which it claims was due to Jane Doe's and John Doe Corporation's negligence and gross negligence, and the threatened injury of an adverse judgment (id. at ¶¶ 66-67). These are not “speculative]” allegations as argued by the plaintiff. Viewing the well-pled allegations as true, the undersigned finds the third-party complaint sufficiently states claims for negligence and gross negligence and recommends denying the plaintiff's motion to dismiss.
B. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Rule 12(f) motions “‘are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.'” Gordon v. TBC Retail Grp., Inc., No. 2:14-cv-3365-DCN, 2020 WL 1703912, at *2 (D.S.C. April 8, 2020) (citing Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)). A Rule 12(f) motion “should ‘show clearly' that the pleading or the portion of the pleading that the motion is directed to is ‘outside the issues in the case and is prejudicial to the objecting party.'” Hamilton v. Army Bd. for Corr., No. CV 2:21-195-BHH-MHC, 2021 WL 9553007, at *8 (D.S.C. Dec. 7, 2021) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1383 (3d ed. 1995)), R&R adopted by 2022 WL 4481468 (D.S.C. Sept. 27, 2022), aff'd, No. 22-2121, 2023 WL 3581703 (4th Cir. May 22, 2023).
Here, the plaintiff's motion to strike essentially duplicates his standing argument from the motion to dismiss (compare doc. 27, with doc. 32). The plaintiff has made no showing that facts or issues raised in the defendant's third-party complaint are outside the issues in the case, prejudicial to the plaintiff, or otherwise inappropriate. Accordingly, the undersigned recommends denying the plaintiff's motion to strike.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court deny both the plaintiff's motion to dismiss (doc. 27) and motion to strike (doc. 32).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).