Rolens v. Stearns Nursing & Rehab. Ctr.

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SUSAN ROLENS, Individually and as Special Administrator of the Estate of MARY DELL WHITSELL, deceased., Plaintiff, v. STEARNS NURSING & REHABILITATION CENTER, LLC, and AURORA CARES, LLC d/b/a TARA CARES, LLC

No. 21-cv-00825-JPG

United States District Court, S.D. Illinois

January 27, 2023

MEMORANDUM AND ORDER

J PHIL GILBERT DISTRICT JUDGE

I. Introduction

This matter comes before the Court on Plaintiff Susan Rolens, Individually and as Special Administrator of the Estate of Mary Dell Whitsell, Deceased (“Plaintiff”) Motion for Leave to File her First Amended Complaint to Add Defendants and Amend Existing Allegations. (Doc. 34). Plaintiff filed her motion on November 21, 2022. The same day Plaintiff filed a motion to remand this case to the Third Judicial Circuit Court of Madison County. (Doc. 35). Defendants Stearns Nursing and Rehabilitation Center, LLC and Aurora Cares, LLC, d/b/a Tara Cares (“Defendants”) responded for the motion for leave to amend on December 16, 2022. (Doc. 36). Plaintiff filed her reply on December 21, 2022. (Doc. 37). There is also a pending motion for summary judgment that is fully briefed. (Docs. 22, 26, 31). The Court held an in-person hearing on Plaintiff's Motion for Leave to File a First Amended Complaint and Motion to Remand on January 26, 2023.

II. Background

Plaintiff in this case initially filed her complaint against the above-mentioned defendants for claim pursuant to Illinois Nursing Home Care Act, 210 ILCS 45/1-101 et. Seq., Illinois Survival Act, 755 ILCS 5/27-6, and Illinois Wrongful Death Act, 740 ILCS 180/1, et seq., for Defendants' failures to implement fall prevention policies, procedures, and safeguards, which caused Mary Dell Whitsell to suffer numerous falls resulting in significant, debilitating injuries, which Plaintiff alleges proximately caused her death on January 30, 2021. Defendants remanded the matter under diversity jurisdiction to this Court. (Doc. 1).

On September 7, 2022, Defendants filed a motion for summary judgment based on Plaintiff's failure to timely disclose an expert qualified to opine on the standard of care. (Doc. 22). Specifically, Defendants argued that Plaintiff only timely disclosed a medical doctor as an expert, and he was not qualified to testify regarding the nursing standard of care. Upon motion of Plaintiff's Motion to Modify the Court's Scheduling Order (Doc. 25), where Plaintiff requested additional time to endorse their experts, the Court granted the motion and tabled the pending motion for summary judgment.

Now Plaintiff is seeking leave pursuant to FRCP 15 to add individual nurses as defendants. Additionally, Plaintiff is requesting to add common law negligence claims pursuant to the Survival Act of Illinois against existing Defendants, amend allegations to existing claims, and add common law medical negligence claims under the Survival Act of Illinois and Wrongful Death Act of Illinois against the four new proposed nurse defendants. These nurses are residents of Illinois, as is Plaintiff, which would destroy diversity jurisdiction and require this Court to remand this action to state court. Defendants, responding 11 days after their response was due, argues this Court should deny the motion because this is an improper attempt to defeat diversity.

The Court conducted hearing to hear the arguments of counsel on January 26, 2023. The Court considered the arguments made during hearing and briefing. The Court now turns to the specifics of this case.

III. Analysis

In general, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). “There is a presumption that a plaintiff should have an opportunity to test a claim on the merits,” Lee v. N.E. Ill. Reg'l Commuter R.R. Corp., 912 F.3d 1049, 1052 (7th Cir. 2019), so “the court should freely give leave when justice so requires,” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (reversing denial of leave to amend by citing to Rule 15(a)(2)'s mandate to freely give leave to amend and stating “this mandate is to be heeded”).

There is “[g]ood cause” to file an amended complaint “when it is reasonable that new claims are only recognized after filing an initial complaint.” Luckett v. Conlan, 561 F.Supp.2d 970, 976 (N.D.Ill. 2008). Leave to amend should be freely given “ ‘[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment.' ” Barry Aviation, Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Ultimately, “ ‘[t]he decision to grant or deny a motion to file an amended pleading is a matter purely within the sound discretion of the district court.' ” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (quoting Brunt v. Serv. Employees Int'l Union, 284 F.3d 715, 720 (7th Cir.2002)).

Defendants argues that this Court should not grant leave because it amounts to fraudulent joinder. When joinder of a nondiverse party would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies and provides the district court two options: (1) deny joinder, or (2) permit joinder and remand the action to state court. See Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir. 1996). These are the only options; the district court may not permit joinder of a nondiverse defendant and retain jurisdiction. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009).

The Seventh Circuit directs district courts to apply several factors to determine whether post-removal joinder of a nondiverse party is appropriate. (1) the plaintiff's motive for seeking joinder, particularly whether the purpose is to defeat federal jurisdiction; (2) the timeliness of the request to amend; (3) whether the plaintiff will be significantly injured if joinder is not allowed; and (4) any other relevant equitable considerations. Id. Fraudulent joinder is difficult to establish- a defendant must demonstrate that, “after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant.” Id. at 764 (internal citations omitted).

Fraudulent joinder is difficult to establish-a defendant must demonstrate that, “after resolving all issues of fact and law in favor of the plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant.” Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). The question before the Court, therefore, is whether there is “any reasonable possibility” that a plaintiff could prevail against the non-diverse defendant. Id. Defendants face a “heavy burden” to demonstrate joinder is “fraudulent”^[1]. Schur, 577 F.3d at 764 (suggesting some courts state the burden is more favorable to the plaintiff than the standard under a motion to dismiss under FRCP 12(b)(6)).

Before evaluating the factors, the Court will address the timeliness of Defendants' response. Pursuant to the U.S. District Court Southern District of Illinois (“SDIL-LR”), all motions other than a motion to remand^[2], judgment on the pleading, summary judgment, to suppress, and post-trial motions, shall have 14 days after service of the motion to file a written response. “Failure to file a timely response to a motion may, in the Court's discretion, be considered an admission of the merits of the motion.” SDIL-LR 7.1(g). Therefore, any opposition or response to Plaintiff's motion was due December 5, 2022. Defendants filed their response on December 16, 2022. Defendants' response is not timely. Plaintiff asks this Court not to consider Defendants' untimely response and grant the motion. While the Court is fully within its discretion to strike Defendants' response and consider the lack of timeliness an admission on the merits, the Court will not do so. While Defendants do not provide good cause justification for failure to respond by the time prescribed by this Court's local rules, nor did so at the hearing on January 26, 2023, the Court will consider the merits of Defendants' response. Additionally, Plaintiff does not argue that it is substantially prejudiced by Defendants' untimely response.

The Court will address the first and second factors together. Regarding the motive of Plaintiff's request, Defendants argue that “the sole reason for Plaintiff to add the four nurses is to defeat Federal Jurisdiction.” (Doc 36 at 4). In support, Defendants argue that Plaintiff has had the names of these four nurses and their entries prior to filing this complaint in state court and the removal of this case to federal court in July 2021. In response Plaintiff argues that Plaintiff has “[p]otential strategic reasons” to have individually named defendant including “trial strategy and additional sources of recovery.” (Doc. 37 at 4). Additionally, Plaintiff indicates that Illinois, where this case would be remanded, is a joint and several liability state, which could give Plaintiff additional potential sources of recovery. Id. at 4. While “an extensive delay between removal and a motion to amend typically weighs against permitting joinder.” Schur, 577 F.3d at 767, Plaintiff urges the Court to look at the statute of limitations in this case, which expire on January 30, 2023. While the Court agrees with Defendants that substantial time has passed, the Court must weigh that against Plaintiff's desire to make strategic decisions in its case, as well as being mindful...