Drew v. Quest Diagnostics & Aerotek, Inc.

• Decision Date: 17 January 2014
• Docket Number: Civil Action No. CV–13–S–629–NE.
• Citation: 992 F.Supp.2d 1177
• Parties: Kenneth and Elizabeth DREW, Plaintiffs, v. QUEST DIAGNOSTICS and Aerotek, Inc., Defendants.
• Court: U.S. District Court — Northern District of Alabama

992 F.Supp.2d 1177

Kenneth and Elizabeth DREW, Plaintiffs,

v.QUEST DIAGNOSTICS and Aerotek, Inc., Defendants.

Civil Action No. CV–13–S–629–NE.

United States District Court,

N.D. Alabama,

Northeastern Division.

Jan. 17, 2014.

Greg William Foster, Hollis Wright & Couch PC, Birmingham, AL, Joshua Patrick Hayes, The Prince Glover Law Group PC, Tuscaloosa, AL, for Plaintiffs.

James C. Gray, III, Karen M. Ross, Lloyd Gray Whitehead & Monroe PC, Labella S. Alvis, Robert Jordan Wood, Christian & Small LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

C. LYNWOOD SMITH, JR., District Judge.

Plaintiffs, Kenneth and Elizabeth Drew, assert claims against Quest Diagnostics (“Quest”), and Aerotek, Inc. (“Aerotek”), for: (1) negligence and/or wantonness (Count One); (2) negligent and/or wanton supervision or training (Count Two); (3) negligent and/or wanton retention (Count Three); (4) negligent and/or wanton hiring (Count Four); (5) medical negligence and/or wantonness (Count Five); (6) combined and concurring negligence and/or wantonness (Count Six); (7) outrage (Count Seven); (8) prima facie and/or per se negligent and/or wanton conduct in violation of Alabama Code § 8–19–5 (Count Eight); (9) invasion of privacy—wrongful intrusion (Count Nine); (10) defamation—libel and slander (Count Ten); and (11) res ipsa loquitur (Count Eleven).¹ Federal jurisdiction is based upon the diversity statute, 28 U.S.C. § 1332.²

The case currently is before the court on the following motions: (1) Aerotek's motion to dismiss all of plaintiffs' claims except Count Five; ³ (2) Quest's motion for judgment on the pleadings, and motion to strike various counts of plaintiffs' First Amended Complaint; ⁴ and (3) plaintiffs' motion to strike facts not in the pleadings from the court's consideration of Quest's motion for judgment on the pleadings.⁵ Upon consideration of the motions, pleadings, and briefs, the court concludes that: Aerotek's motion to dismiss should be granted in part and denied in part; Quest's motion for judgment on the pleadings should be granted in part and denied in part; Quest's alternative motion to strike should be denied; and plaintiffs' motion to strike should be denied as moot.

I. STANDARDS OF REVIEW

A. Motion to Dismiss

Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). This rule must be read together with Rule 8(a), which requires that a pleading contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While that pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). As the Supreme Court stated in Iqbal:

A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” [Twombly, 550 U.S., at 555, 127 S.Ct. 1955]. Nor does a complaint suffice if it tenders “naked assertion [s]” devoid of “further factual enhancement.” Id., at 557, 127 S.Ct. 1955.

To survive a motion to dismiss founded upon Federal Rule of Civil Procedure 12(b)(6), [for failure to state a claim upon which relief can be granted], a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. 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. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557, 127 S.Ct. 1955 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S.Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty ] 490 F.3d [143], at 157–158 [ (2d Cir.2007) ]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show [n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. 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.

Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 (emphasis added).

B. Motion for Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c).

“Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir.2002) (quoting Moore v. Liberty National Life Insurance Co., 267 F.3d 1209, 1213 (11th Cir.2001) (internal marks omitted)). Stated differently, “[j]udgment on the pleadings is proper when no issues of material fact exist, and the movant is entitled to judgment as a matter of law.” Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996) (alteration supplied). When reviewing such a motion, the court is required to accept the facts alleged in the complaint as true, and to view them in the light most favorable to the nonmoving party. Swerdloff v. Miami National Bank, 584 F.2d 54, 57 (5th Cir.1978). ⁶

C. Motion to Strike

Federal Rule of Civil Procedure 12(f) allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).

“A motion to strike is a drastic remedy[,]” which is disfavored by the courts and “will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Augustus v. Board of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.1962); Poston v. American President Lines Ltd., 452 F.Supp. 568, 570 (S.D.Fla.1978). Further, when deciding a motion to strike, a court must accept the truthfulness of well-pleaded facts and “cannot consider matters beyond the pleadings.” Carlson Corp./Southeast v. School Board Of Seminole County, Fla., 778 F.Supp. 518 (M.D.Fla.1991); See also: U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957, 959 (E.D.Wis.1981).

Thompson v. Kindred Nursing Centers East, LLC, 211 F.Supp.2d 1345, 1348 (M.D.Fla.2002) (alteration in original).

II. ALLEGATIONS OF PLAINTIFFS' AMENDED COMPLAINT⁷

Defendant Quest is a diagnostics laboratory that conducts testing for various blood diseases.⁸ Defendant Aerotek is a staffing agency involved in the staffing of employees working at Quest's Huntsville, Alabama location. ⁹

On October 26, 2011, a blood sample was drawn from plaintiff Kenneth Drew at Quests's Huntsville, Alabama laboratory as part of a routine physical examination for his military employer.¹⁰ During the testing process, Mr. Drew's blood sample either was not labeled at all, or was improperly labeled, by a technician employed by Aerotek and working at Quest's Huntsville location.¹¹ Mr. Drew inquired as to why his sample had not been labeled, and he was told by the technician that it would be done later. ¹²

Mr. Drew's test results were sent to his primary care physician in Lawrenceville, Georgia. That physician notified Mr. Drew on October 31, 2011, that he had tested positive for both the herpes virus and the HIV virus. ¹³ Mr. Drew was required to inform his military employer of those results, and the results also were reported to the United States Centers for Disease Control and Prevention.¹⁴ The results, however, were false. ¹⁵

As a result of defendants' negligent and/or wanton handling of Mr. Drew's blood test, Mr. Drew's marriage to plaintiff Elizabeth Drew suffered. ¹⁶ Both Mr. and Mrs. Drew also suffered extreme emotional distress, mental anguish, and embarrassment, and they were required to miss time from work and to attend medical appointments.¹⁷

III. DISCUSSION

A. The Alabama Medical Liability Act

Both Quest and Aerotek...