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Simmons v. Simpson House, Inc.

United States District Court, E.D. Pennsylvania

April 7, 2017

JOHN SIMMONS, Plaintiff,
v.
SIMPSON HOUSE, INC., et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         John Simmons filed this lawsuit in his own right and as the administrator of his mother's estate. He alleges that his mother, Ola Simmons, moved into Simpson House Nursing Home because she was suffering from senile psychosis and episodic incontinence. During her five-month stay there, she developed pressure sores, experienced excessive weight loss and contracted multiple infections. Ola was transferred to Prime-Roxborough Hospital where her condition continued to decline. After less than a month at Prime-Roxborough, she moved to Kindred Hospital. Ola died roughly two months later while in hospice care.

         John Simmons asserts claims of negligence, wrongful death and survival, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) against Simpson House and Simpson House, Inc. (“Simpson House”), Prime Healthcare Services-Roxborough, LLC (“Prime-Roxborough”) and Kindred Hospital-South Philadelphia and Kindred Healthcare Inc. (“Kindred”). Before the Court is Simpson House's motion to dismiss Simmons's claim under the UTPCPL. (ECF No. 74.) The Court grants the motion and dismisses Count 15 with prejudice.

         I.

         This case's factual background has been set out in a prior opinion. See Simmons v. Simpson House, Inc., ___ F.Supp.3d ___, No. 15-06636, 2016 WL 7209931, at *1 (E.D. Pa. Dec. 12, 2016.)

         John Simmons filed his original Complaint on December 15, 2015 against Simpson House, Solis Healthcare, LLC and Prime-Roxborough, alleging negligence, wrongful death and survival. (ECF No. 1.) Defendants filed motions to dismiss for failure to state a claim. (ECF Nos. 6 & 14.) On April 21, 2016 the Court granted the motions but allowed Simmons leave to file an Amended Complaint. (ECF No. 26.)

         Simmons filed an Amended Complaint against Simpson House and Prime-Roxborough on May 23, 2016. (ECF No. 29.) On June 8, 2016 Simpson House filed a motion to dismiss the Amended Complaint, in part because Simmons failed to join an indispensable party-Kindred. Two days later, Simmons filed a “Petition to Amend/Correct Caption and Complaint” and specifically sought to join Dr. Waheeda Ali and Kindred as new defendants. (ECF No. 31.)[1]

         On June 30, 2016 the Court denied Simmons's Petition. It directed Simmons to seek Defendants' consent or to file a proper motion for leave to amend. (ECF No. 36.) On July 8, 2016 Simmons moved for leave to file an Amended Complaint under Rule 15. (ECF No. 37.) The Court granted Simmons's motion on July 28, 2016, (ECF Nos. 31-4 & 31-5), and deemed the Amended Complaint filed as of the same date, (ECF No. 45). This was Simmons's Second Amended Complaint.[2]

         All Defendants filed motions to dismiss the Second Amended Complaint. The Court largely denied Simpson House and Prime-Roxborough's motions. (ECF Nos. 68 & 69.) The Court granted Simmons leave to amend his Complaint-only with respect to his claim against Simpson House under the UTPCPL. (ECF No. 69.)

         Simmons filed his Third Amended Complaint on December 22, 2016. (ECF No. 70.) Simmons again violated Rule 15 by amending his Complaint without leave of Court. Instead of amending only Count 18, related to the UTPCPL claim, Simmons also added allegations to paragraphs pertaining to counts other than the UTPCPL. The Court struck these additional paragraphs from the Third Amended Complaint in a separate order and opinion. (ECF Nos. 86 & 87.) Before the Court is Simpson House's partial motion to dismiss the UTPCPL count of the Third Amended Complaint. (ECF No.74.)

         II.

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citation omitted). While a complaint need not include detailed facts, it must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         Twombly and Iqbal require the Court to take three steps to determine whether the second amended complaint will survive Defendants' motion to dismiss. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must “take note of the elements the plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Next, it must identify the allegations that are no more than legal conclusions and thus “not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally, where the complaint includes well-pleaded factual allegations, the ...


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