Vanhook v. Somerset Health Facilities, LP, Civil No. 14–121–GFVT.

• Court: United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
• Writing for the Court: GREGORY F. VANTATENHOVE, District Judge.
• Citation: 67 F.Supp.3d 810
• Parties: Timothy VANHOOK, Executor of the Estate of Wilda Vanhook, Plaintiff, v. SOMERSET HEALTH FACILITIES, LP, d/b/a Cumberland Nursing and Rehabilitation Center, Defendant.
• Docket Number: Civil No. 14–121–GFVT.
• Decision Date: 15 December 2014

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Timothy VANHOOK, Executor of the Estate of Wilda Vanhook, Plaintiff
v.
SOMERSET HEALTH FACILITIES, LP, d/b/a Cumberland Nursing and Rehabilitation Center, Defendant.

Civil No. 14–121–GFVT.

United States District Court, E.D. Kentucky, Southern Division, London.

Signed Dec. 15, 2014.

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Jeremy J. Nelson, The Sampson Law Firm, Louisville, KY, for Plaintiff.

Edmund J. Benson, Kathryn T. Martin, Frost Brown Todd LLC, Lexington, KY, for Defendant.

MEMORANDUM OPINION & ORDER

GREGORY F. VANTATENHOVE, District Judge.

After his mother's death in a nursing home operated by Defendant, Plaintiff Timothy Vanhook, as executor of his mother's estate, brought this action claiming negligence per se, as well as several other causes of action. Vanhook alleges that Kentucky Revised Statute § 446.070, Kentucky's codification of the negligence per se doctrine, provides him a cause of action for violation of federal law, state criminal laws, and state laws regulating healthcare facilities and adult abuse. Defendant now moves to dismiss these negligence per se claims pursuant to

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Federal Rule of Civil Procedure 12(b)(6). This Court agrees that some, but not all, of the claims pled in Vanhook's Complaint are legally insufficient or factually implausible as alleged. Accordingly, the Court GRANTS Defendant's motion to dismiss in part and DENIES it in part.

I

On June 3, 2012, Wilda Vanhook was admitted to Cumberland Nursing and Rehabilitation Facility, a long-term care facility operated by Defendant Somerset Health Facilities, L.P. [Compl., R. 1–2 at ¶ 1.] Plaintiff Timothy Vanhook, Wilda Vanhook's son and the executor of her estate, alleges that his mother developed “multiple pressure sores” and suffered from dehydration and malnutrition due to Cumberland's neglect and failure to provide appropriate care. [Id., R. 1–2 at ¶ 20.] Vanhook claims that this “accelerated deterioration” of his mother's health led to her death on April 26, 2013. [Id., R. 1–1.] He subsequently filed the present action alleging negligence, negligence per se under Kentucky Revised Statute (KRS) § 446.070, and corporate negligence.

At issue in this partial motion to dismiss are Vanhook's negligence per se claims. His Complaint alleges that Cumberland violated various statutory and regulatory duties of care that he contends are actionable as negligence per se under KRS § 446.070. [Compl., R. 1–2 at ¶ 26.] These claims can be divided into three broad categories. First, Vanhook appears to claim that Cumberland was negligent per se for violating “the applicable federal laws and regulations governing the certification of long-term care facilities under Titles XVIII or XIX of the Social Security Act.” [Compl., R. 1–2 at ¶ 26(e) ]. Second, Vanhook asserts a negligence per se claim for violation of three criminal statutes found in Kentucky's Penal Code, KRS § 508.090, KRS § 530.080, and KRS § 506.080. KRS § 508.090 makes certain acts of “criminal abuse” a felony, KRS § 530.080 creates a misdemeanor for “endangering the welfare of an incompetent person,” and KRS § 506.080 is Kentucky's criminal facilitation statute. [Compl., R. 1–2 at ¶ 26(b)-(d) ]. Third, Vanhook alleges that Cumberland was negligent per se for violating Chapters 209, 216, and 216B of the Kentucky Revised Statutes. [Compl., R. 1–2 at ¶ 26(a), (e) ]. Chapter 209 codifies the Kentucky Adult Protection Act, Chapter 216 sets forth licensing requirements for long-term care facilities and enumerates the rights of residents in those facilities, and Chapter 216B sets forth the general licensing and quality of care requirements for all health care facilities operating in the Commonwealth. Cumberland argues that Vanhook lacks a cause of action under KRS § 446.070 for each of these categories and that each of these negligence per se claims must be dismissed as a matter of law.

II

A

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a Rule 12(b)(6) motion, the Court “accept[s] all the [plaintiff's] factual allegations as true and construe[s] the complaint in the light most favorable to the [p]laintiff [ ].” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir.2005). To properly state a claim, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

Additionally, as is now well known, the Supreme Court has clarified that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In amassing sufficient factual matter, plaintiffs need not provide “detailed factual allegations,” but must advance “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” or “a formulaic recitation of the elements of a cause of action.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Though courts must accept all factual assertions as true, they “are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). Thus, it is incumbent upon the Court to first sort through the plaintiff's complaint and separate the real factual allegations, which are accepted as true and contribute to the viability of the plaintiff's claim, from the legal conclusions that are only masquerading as facts and need not be accepted.

Once the Court has discarded the legal conclusions, the question becomes whether the actual remaining facts state a plausible claim for relief. Plaintiffs do not succeed in making a claim plausible by adorning to their complaints with facts creating a “sheer possibility that a defendant has acted unlawfully” or facts that are “merely consistent with a defendant's liability.” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). Instead, “[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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

B

1

The threshold issue in contention here is whether the federal pleading standards articulated in Federal Rule of Civil Procedure 8 and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) apply to state law claims removed to federal court. Vanhook argues that this Court should look to Kentucky's pleading requirements in ruling upon Cumberland's 12(b)(6) motion, since his complaint was originally filed in a Kentucky state court. [Pl.'s Resp. to Def.'s Mot. Dismiss, R. 5 at 3.] Vanhook points out that Kentucky retains a notice pleading standard and, without citing any authority, contends that removal to federal court “cannot abrogate this standard.” [Id. ] This assertion is incorrect.

It is well established that the Federal Rules of Civil Procedure apply to removed cases. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ; see, e.g., Granny Goose Foods v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 438, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) (“The Federal Rules of Civil Procedure, like other provisions of federal law, govern the mode of proceedings in federal court after removal.”); Stern v. Inter–Mountain Tel. Co., 226 F.2d 409 (6th Cir.1955). The Sixth Circuit has not addressed the issue post-Iqbal, but other lower federal courts, including one within this Circuit, have consistently held that federal pleading requirements under Rule 8 and the Twombly–Iqbal standard apply to removed complaints, even where the state pleading standard is more lenient. See Faulkner v. ADT Servs., 706 F.3d 1017 (9th Cir.2013) (quoting Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009) ) (“It is well-settled that the Federal Rules of Civil Procedure apply in federal court, irrespective of the source of the subject matter jurisdiction, and irrespective of whether

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the substantive law at issue is state or federal.”); Stuhlmacher v. Home Depot U.S.A., Inc., 2011 U.S. Dist. LEXIS 50887, 2011 WL 1792853 (N.D.Ind.2011) (applying federal pleading standards to a removed complaint and allowing repleading if the complaint falls short of the more stringent federal standard); Maness v. Boston Scientific, 751 F.Supp.2d 962 (E.D.Tenn.2010) (rejecting the plaintiff's argument for application of a state pleading standard as “without merit” and holding that “all claims, once removed to federal court, are subject to federal pleading requirements”); Wendell v. Johnson & Johnson, No. C 09–04124, 2010 WL 271423, at *2, 2010 U.S. Dist. LEXIS 4188, at *7 (N.D.Cal. Jan. 20, 2010) (“[A] Rule 12(b)(6) motion considers the substantive sufficiency...