Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Edwards v. Camden Operations, LLC

United States District Court, W.D. Arkansas, El Dorado Division

July 19, 2018

ADDIE EDWARDS, as Personal Representative of the Estate of Ozie Edwards and on behalf of the wrongful death beneficiaries of Ozie Edwards and all others similarly situated; and DEBRA WHEELINGTON, as Personal Representative of the Estate of Buele Cross and on behalf of the wrongful death beneficiaries of Buele Cross and all others similarly situated PLAINTIFFS
v.
CAMDEN OPERATIONS, LLC, d/b/a Ouachita Nursing and Rehabilitation Center, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          SUSAN O. HICKEY UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Dismiss filed by Separate Defendants Camden Operations, LLC d/b/a Ouachita Nursing and Rehabilitation Center and Sub-Ten Holdings, LLC (hereinafter the “Camden Defendants”). ECF No. 57. Plaintiffs have filed a response. ECF No. 62. The Camden Defendants have filed a reply. ECF No. 67. The Court finds this matter ripe for consideration.

         BACKGROUND

         Plaintiffs bring claims in their capacities as personal representatives of the estates of two former residents of the Ouachita Nursing and Rehabilitation Center (hereinafter the “Facility”) as well as on behalf of a proposed class consisting of “all residents and estates of residents who resided at Camden Operations, LLC and Camden-Progressive Eldercare Services, Inc. both d/b/a Ouachita Nursing and Rehabilitation Center from September 1, 2013 through the present[.]” ECF No. 55, pp. 1-2. In the Third Amended Class Action Complaint, Plaintiffs assert causes of action for: (1) violations of the Arkansas Deceptive Trade Practices Act (hereinafter “ADTPA”) (ECF No. 55, p. 23); (2) breach of the admission agreement (ECF No. 55, p. 27); (3) illegal exaction under Article Sixteen, section Thirteen of the Arkansas Constitution (ECF No. 55, p. 29); (4) civil conspiracy/acting in concert (ECF No. 55, p. 31); and (5) unjust enrichment (ECF No. 55, p. 33). Plaintiffs claim that Defendants chronically understaffed the Facility, which led to the injury of residents. ECF No. 55, ¶ 29. Plaintiffs state that:

Defendants' understaffing practices saved them millions of dollars at the expense of the residents' dignity and comfort, and jeopardized their safety. As a result of chronic understaffing, residents at the Facilities were left for long periods in their own urine and waste; were not cleaned, repositioned, or moved, resulting in infections, pressure sores, and loss of mobility; were deprived of food and water; and suffered falls. The failure to provide adequate staff not only violated the law and the contractual terms of the Admission Agreement, it also degraded residents and stripped them of their dignity.

ECF No. 55, ¶ 35. According to Plaintiffs, “Defendants' systemic failure to have sufficient staff at the Facility to meet the needs of its residents . . . caused Plaintiffs and the proposed Plaintiff Class to suffer economic and compensatory damages and injuries[.]” ECF No. 55, ¶ 29.

         LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), a pleading must provide “a short and plain statement of the claim that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court must accept as true all factual allegations set forth in the complaint by the plaintiff, drawing all reasonable inferences in the plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). However, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.

         “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. 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. (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In considering a motion to dismiss under Rule 12(b)(6), “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

         “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertions' devoid of ‘further factual enhancement.'” Id. (internal citations and alterations omitted) (quoting Twombly, 550 U.S. at 555, 557). In other words, “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “[W]here 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.' Id. (quoting Fed.R.Civ.P. 8(a)(2)).

         DISCUSSION

         In the instant motion, the Camden Defendants assert that Plaintiffs' claims against them warrant dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Camden Defendants also argue that the claims of Plaintiff Debra Wheelington in her capacity as personal representative of the Estate of Buele Cross “must be dismissed as to [the] Camden Defendants because Mr. Cross did not reside at the facility while it was operated by [the] Camden Defendants.” ECF No. 57, ¶ 7. The Court will address each of the Camden Defendants' arguments in turn.

         I. Arkansas Deceptive Trade Practices Act Claims

         The Camden Defendants assert that Plaintiffs have failed to plead the elements of an ADTPA claim and that, therefore, Plaintiffs' claims against the Camden Defendants for alleged ADTPA violations should be dismissed. The Camden Defendants also argue that Plaintiffs rely on insufficient “group pleading” instead of alleging specific conduct of any one defendant.

         As an initial matter, the Court must address the issue of whether the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to the instant matter. The parties disagree on this issue. In general, Rule (9)(b) applies to ADTPA claims. Perez v. Volkswagen Grp. of Am., Inc., No. 2:12-CV-02289, 2013 WL 1661434, at *8 (W.D. Ark. Apr. 17, 2013) (applying Rule 9(b) to ADTPA claims and observing that “Rule 9(b)'s pleading standard applies with equal force to state consumer fraud statutes as to common law fraud claims”); Pruitt v. Sw. Energy Co., 2013 WL 588998, at *5 (E.D. Ark. Feb. 13, 2013); Whatley v. Reconstrust Co. NA, 2010 WL 4916372, at *6 (E.D. Ark. Nov. 23, 2010)).

         However, Plaintiffs appear to take the position that the Rule 9(b) standard does not apply to their particular ADTPA claims under Ark. Code Ann. § 4-88-108(2). In asserting that the Rule 9(b) heightened standard does not apply, Plaintiffs fail to cite any caselaw stating that Rule 9(b) is inapplicable under the present circumstances.[1] Instead, Plaintiffs rely on opinions noting that the ADTPA must be construed liberally. Although the ADTPA requires liberal construction, that does not mean that claims made pursuant to § 4-88-108(2) of the ADTPA are excused from the heightened pleading requirements of Rule 9(b). The Eighth Circuit has observed that “[c]laims ‘grounded in fraud' must meet [the Rule 9(b)] heightened pleading requirement.” Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1010 (8th Cir. 2015). The ADTPA appears to be a statute that is “grounded in fraud.” See Ark. Code Ann. § 4-88-108(2) (“When utilized in connection with the sale or advertisement of any goods, services, or charitable solicitation, the following shall be unlawful:. . . (2) The concealment, suppression, or omission of any material fact with intent that others rely upon the concealment, suppression, or omission.”). Accordingly, the Court concludes that the heightened pleading standard of Rule 9(b) applies to Plaintiffs' ADTPA claims.

         Having determined that Rule 9(b) applies, the Court now turns to that rule's requirements. Federal Rule of Civil Procedure 9(b) states as follows: “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” This standard “demands a higher degree of notice than that required for other claims. The claim must identify who, what, where, when, and how.” United States ex rel. Costner v. United States, 317 F.3d 883, 888 (8th Cir. 2003). “The reason for requiring particularity in pleading for fraud claims, such as those established under the ADTPA, is ‘to enable the defendant to respond specifically and quickly to the potentially damaging allegations.'” Perez, 2013 WL 1661434, at *8 (quoting United States ex rel. Costner, 317 F.3d at 888).

         A. Failure to Plead the Elements of an ADTPA Claim

         The Court will first address the Camden Defendants' assertion that Plaintiffs have failed to plead the elements of an ADTPA claim.

         Plaintiffs state that they base their ADTPA claims on Ark. Code Ann. § 4-88-108(2). That statute states as follows:

When utilized in connection with the sale or advertisement of any goods, services, or charitable solicitation, the following shall be unlawful:. . . (2) The concealment, suppression, or omission of any material fact with intent that others rely upon the concealment, suppression, or omission.

         To prevail on an ADTPA claim based on omission, “a plaintiff must show that: (1) the plaintiff has sustained damages; (2) the defendant concealed, suppressed, or omitted a material fact in connection with the sale or advertisement of services; (3) the defendant intended that others rely upon the concealment, suppression, or omission; and (4) the defendant's conduct was a proximate cause of the plaintiff's damages.”[2] Moore v. Mack's Sport Shop, LLLP, No. 4:16-CV-00540-KGB, 2017 WL 4350980, at *3 (E.D. Ark. Sept. 29, 2017) (quoting Ramthun v. Bryan Career College-Inc., 93 F.Supp.3d. 1011, 1023-24 (W.D. Ark. 2015)). In regard to the damages element, a plaintiff must show that he has sustained actual damage or injury. Ramthun, 93 F.Supp.3d. at 1023. Claims made pursuant to Ark. Code Ann. § 4-88-108(2) do not require knowing or intentional deception. Curtis Lumber Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 776 (8th Cir. 2010).

         As previously noted, the Camden Defendants assert that Plaintiffs have failed to sufficiently allege any element of the ADTPA section under which they move. However, the Court will only address two of the necessary elements of a claim under Ark. Code Ann. § 4-88-108(2) in the interest of judicial economy. The Court will first discuss whether Plaintiffs have sufficiently alleged that they-through the decedents whose estates Plaintiffs represent-sustained damages. The Court will then turn to the issue of whether Plaintiffs have sufficiently alleged that the Camden Defendants omitted the information regarding understaffing with the intent that others rely on those alleged omissions.

         i. Sufficiency of Damages Allegations

         The Camden Defendants assert that Plaintiffs have failed to plead “any actual damage or injury suffered by Ozie Edwards or Buele Cross as a result of any instance of understaffing” and that Plaintiffs instead make allegations of general injuries suffered by Plaintiffs and the proposed class. Plaintiffs argue that their allegations of damages are sufficient.

         Upon review of Plaintiffs' response to the instant motion, the Court notes that most of the citations to the Third Amended Class Action Complaint refer to sections stating either that Plaintiffs generally suffered damages or that Defendants' alleged understaffing practices made them unable to provide specific services to residents. See ECF No. 55, ¶ 29 (“This case arises from Defendants' systemic failure to have sufficient staff at the Facility to meet the needs of its residents which caused Plaintiffs and the proposed Plaintiff Class to suffer economic and compensatory damages and injuries described in more detail below.”); ECF No. 55, ¶ 34 (“More specifically, understaffing led to a pattern and practice of failing to provide Basic Care Services at the Facility to the residents during the Class Period. For example, the Facility failed to provide adequate staff: . . . To regularly provide toileting, incontinence care, and basic hygiene care, leaving dependent residents in dirty diapers, dirty clothes, and dirty beds for hours at a time; To timely respond to call lights rung by residents. Residents were left to soil themselves while waiting for assistance; others fell while attempting to walk to the bathroom unaided[.]”); ECF No. 55, ¶ 35 (“As a result of chronic understaffing, residents at the Facility were left for long periods in their own urine and waste; were not cleaned, repositioned, or moved, resulting in infections, pressure sores, and loss of mobility; were deprived of food and water; and suffered falls.”); ECF No. 55, ¶ 57 (“As a direct and proximate result of the Defendants' conduct, the Plaintiffs and Plaintiff Class have suffered actual damage, both in terms of physical injuries, as detailed above, and damages for loss of dignity, mental anguish and economic damage.”). That being said, Plaintiffs do state as follows in relation to Ozie Edwards and Buele Cross specifically:

While a resident at the Ouachita Nursing and Rehabilitation Center, Ozie Edwards sustained multiple injuries including, but not limited to, the following: (a) malnutrition; (b) dehydration; (c) multiple infections; (d) poor hygiene; and (e) death. Additionally, while a resident at the Ouachita Nursing and Rehabilitation Center, Buele Cross sustained multiple injuries including, but not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.