SMITH v. NEUROINTERNATIONAL HEALTHCARE LLC (2023)

ORDER

Shelene Smith sues the owners and operators of an assisted living facility, as well as one caregiver at that facility. See Am. Compl. (Doc. 1-2). Several Defendants move to dismiss the action because Smith did not give them adequate presuit notice pursuant to § 429.293(2), Florida Statutes. MTD (Doc. 2). Defendants claim that Smith's premature filing allows her to circumvent a newly enacted Florida law, and that this circumvention would prejudice them. Reply to Resp. to MTD (Doc. 16) at 2–4. Smith offers to amend her complaint and concede that the new law applies. Mot. to File 2d Am. Compl. (Doc. 25). But one Defendant objects to the amendment because it would also add a claim for punitive damages. Resp. to Mot. to File 2d Am. Compl. (Doc. 28). I deny the motion to dismiss, grant the motion to amend, and conclude that the new law does not apply to the amended complaint.

I. BACKGROUND

Shelene Smith alleges that her disabled son, Matthew, was abused and neglected at his assisted living center. See Am. Compl. ¶¶ 37–54. On his behalf, she sues the owners and operators of the assisted living center, Neurointernational Healthcare, LLC; Center for Comprehensive Services, Inc.; and National Mentor Holdings, Inc. (collectively, the Entity Defendants) for violating § 429.29, Florida Statutes. Id. ¶¶ 55–93. She also sues Taylor Mitchell, a caregiver at the facility, for false imprisonment and civil battery. Id. ¶¶ 95–103.

Pending before me are two motions. First, the Entity Defendants move to dismiss the action because Smith failed to give them adequate presuit notice under § 429.293(2), Florida Statutes. MTD. Second, Smith moves to amend her complaint to (a) drop her clams against all Defendants except Neurointernational Healthcare (b) allow a recent Florida tort reform bill to apply to her action, and (c) request punitive damages. Mot. to File 2d Am. Compl. Neurointernational Healthcare opposes the motion to amend insofar as it requests punitive damages. Resp. to Mot. to File 2d Am. Compl.

II. LEGAL STANDARD

A complaint fails “to state a claim upon which relief can be granted” under the Federal Rule of Civil Procedure if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2), 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint must include more than “naked assertion[s],” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, the complaint must contain sufficient facts to state a claim that is “plausible on its face.” Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (quotations omitted). A claim is facially plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. And an inference is reasonable when common sense, considering the surrounding facts, requires the inference be drawn. Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022).

At the motion to dismiss stage, the plaintiff's factual allegations—but not her legal conclusions—are assumed true and construed “in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). I may not consider evidence outside of “the four corners of the complaint,” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002), which includes “only the complaint itself and any documents referred to in the complaint which are central to the claims,” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

A court should freely grant leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The thrust of Rule 15(a) is to allow parties to have their claims heard on the merits, and accordingly, district courts should liberally grant leave to amend when the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief.” In re Engle Cases, 767 F.3d 1082, 1108–09 (11th Cir. 2014) (quotations omitted). In making this determination, courts consider whether “there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed” from the plaintiff, whether the amendment “would cause undue prejudice to the opposing party,” and whether permitting amendment would be futile. Id. at 1108–09 (quotations omitted).

III. ANALYSIS

Although the two motions before me are separate, they are closely linked. Both raise questions about whether the Entity Defendants can enjoy the benefits of House Bill 837, Florida's recently enacted tort reform law. See Fla. H.B. 837 § 30 (2023). The answer is “no.” But the most efficient way to explain why is to first discuss the motion to dismiss and then the motion to amend.

A. Motion to Dismiss

“Prior to filing a claim for a violation of a resident's rights or a claim for negligence,” claimants in Florida must “notify each prospective defendant by certified mail.” § 429.293(2), Fla. Stat. “No suit may be filed for a period of 75 days after notice is mailed to any prospective defendant.” Id. § 429.293(3)(a). If the parties agree, they may extend the presuit period and continue to toll the statute of limitations. Id. § 429.293(4).

No one disputes that Smith filed her initial complaint on March 20, 2023, before providing the Entity Defendants with the requisite statutory notice. State Ct. Docket Sheet (Doc. 1-1) at 16. That notice was given to the Entity Defendants on March 27, 2023. MTD at 5. The parties then agreed to extend the 75-day period until August 7, 2023. Id. Yet Smith subsequently filed her amended complaint on July 24, 2023. State Ct. Docket Sheet at 46. Given that both complaints were filed during the presuit period, the Entity Defendants move to dismiss. See generally MTD.

Under Florida law, “[m]ere prematurity, which is by definition curable simply by the passage of time is ․ not a proper basis for the outright dismissal of an action.” Angrand v. Fox, 552 So. 2d 1113, 1115 (Fla. 3d DCA 1989). Courts ought to simply abate for the remainder of the period. Id. The Florida Supreme Court has adopted this rule, holding that “[t]he proper remedy for premature litigation is an abatement or stay of the claim for the period necessary for its maturation under the law.” Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1065 n.2 (Fla. 2001) (quotations omitted); see also Bolen v. Ill. Nat. Ins. Co., No. 6:10-CV-1280, 2012 WL 4856753, at *3 (M.D. Fla. Oct. 12, 2012) (applying the same rule).

In their reply, the Entity Defendants point out that there is a class of cases where “the mere passage of time is not sufficient to cure the premature element of the action.” Shuck v. Bank of Am., N.A., 862 So. 2d 20, 25 (Fla. 2d DCA 2003). Florida courts have found that abatement is inappropriate where one of the case's “essential elements is contingent upon the occurrence of an event that may or may not occur.” Id. Dismissal is required in such cases. Id.

The Entity Defendants argue that dismissal is warranted here because Florida House Bill 837 became law on March 24, 2023, just four days after Smith filed suit. Reply to Resp. to MTD at 2. House Bill 837, which significantly impacts aspects of Florida tort law and medical liability, generally does not apply to claims brought before its effective date. Id. at 2–3; H.B. 837 § 30. Had Smith waited until August instead of filing suit prematurely, the action would have been governed by House Bill 837's reforms. The Entity Defendants thus conclude that they have suffered prejudice curable only by dismissing the amended complaint.

But the Shuck rule does not apply to this case. There, a Florida court concluded that abatement would be inappropriate if one of a suit's “essential elements is contingent upon the occurrence of an event that may or may not occur.” Shuck, 862 So. 2d at 25; see also Sheridan v. State, Dep't of Health, 182 So. 3d 787, 794 (Fla. 1st DCA 2016) (dividing actions into two categories, those where “the premature element of a claim is curable simply by the passage of time” and those where “one of the essential elements of the claim is contingent upon the occurrence of an event that may or may not occur”). Each case that the Entity Defendants cite for this proposition deals with a single hypothetical: A claim that depends on the outcome of a separate action. Shuck, 862 So. 2d at 25; Great Am. Assur. Co. v. Sanchuk, LLC, No. 8:10-CV-2568 2012 WL 195526, at *7 (M.D. Fla. Jan. 23, 2012) (characterizing the Shuck rule as applying “when the claim is dependent upon the outcome of a separate action”). The Entity Defendants cite no authority, and I am aware of none, in which a trial court has relied on Shuck to “cure” the prejudice resulting from a defendant's inability to rely on a newly enacted statute. The applicability of the statute is not an “essential element[ ]” of the case, nor is it “contingent upon the occurrence of an event that may or may not occur.” Shuck, 862 So. 2d at 25.

Thus, the Entity Defendants do not ask me to apply Shuck so much as to invent a new exception to Florida courts’ ordinary means of remedying premature litigation. Again, the Florida Supreme Court has held that “[t]he proper remedy for premature litigation is an abatement or stay of the claim for the period necessary for its maturation under the law.” Blumberg, 790 So. 2d at 1065 n.2 (quotations omitted). Because of constitutional limits on my jurisdiction, I have departed from that general rule when an action is unripe. See Caycho v. Am. Sec. Ins. Co., No. 8:22-CV-2502, ––– F.Supp.3d ––––, ––––, 2023 WL 2799491, at *3 (M.D. Fla. Apr. 6, 2023). Shuck carves out a similar exception for cases that rely on the disposition of another pending action. But the Entity Defendants want another kind of exception entirely—one for actions filed shortly before a new law takes effect. The “prejudice” attendant to this kind of action is quite different from the prejudice in Shuck and does not carry with it the same jurisdictional issues. I thus decline to be the first to recognize a “new law” exception to Florida law based solely on the scant briefing contained in the Entity Defendants’ reply. The motion to dismiss must be denied.

B. Motion to File Second Amended Complaint

Since filing her response to the motion to dismiss, Smith has moved for leave to file a Second Amended Complaint (Doc. 25). In that motion, Smith attempts to stipulate that her initial complaint “shall be treated as a pleading nullity.” Mot. to File 2d Am. Compl. at 2 n.1. She also requests punitive damages and drops her claims against every defendant other than Neurointernational Healthcare. Id. at 3–4.

Neurointernational Healthcare opposes the motion insofar as the Second Amended Complaint requests punitive damages. See Resp. to Mot. to File 2d Am. Compl. It does not oppose insofar as the proposed second amended complaint (1) drops Smith's claims against every defendant except Neurointernational Healthcare, and (2) purports to allow House Bill 837 to apply to the case. Id. In other words, the parties want to simply stipulate that House Bill 837 governs.

Nevertheless, the second amended complaint would not be governed by House Bill 837. “[T]he parties’ agreement about or stipulation to a particular view of the law does not absolve” me of my “independent duty to decide” this case according to the law. United States v. Perez, 943 F.3d 1329, 1332 (11th Cir. 2019) (per curiam). And “where the claims brought in an amended complaint are ‘closely related’ to the claims asserted in an original complaint ․ the amendment relate[s] back to the filing date of the original complaint.” Iriele v. Griffin, 65 F.4th 1280, 1287 (11th Cir. 2023). House Bill 837's text also provides grounds to assume that amending the complaint would not change the applicable law. The bill states that its provisions “shall apply to causes of action filed after the effective date of this act.” H.B. 837 § 30. Few cases have interpreted this language, but the Supreme Court of Missouri has concluded that filing an amended petition does not “file[ ]” a new “cause of action” if the “operative facts giving rise to one or more bases for suing” remain the same. State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. 2007). I find this reasoning persuasive and in line with the usual rule that amendments relate back to the original filing date. So long as Smith seeks to vindicate the same legal rights based on the same factual allegations, her cause of action is not newly filed. It is the same cause of action already filed.

Neurointernational Healthcare grounds its opposition to the motion on Florida's punitive damages statute, § 429.297, Florida Statutes. That provision has both a substantive and a procedural component. As a substantive matter, it prohibits claims for punitive damages “unless there is a reasonable showing by evidence ․ which would provide a reasonable basis for recovery of such damages.” § 429.297(1), Fla. Stat. It also prohibits discovery of financial worth “until after the pleading concerning punitive damages is permitted.” Id. As a procedural matter, it requires plaintiffs to “move to amend her or his complaint to assert a claim for punitive damages.” Id.

Neurointernational Healthcare cannot oppose the motion to amend on this basis. The Eleventh Circuit has held that the procedural aspect of an identically worded law—§ 768.72, Florida Statutes—“conflicts with and must yield to the ‘short and plain statement’ rule” contained in the Federal Rules of Civil Procedure. Cohen v. Off. Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000). As a result, plaintiffs “need not obtain leave of court before pleading a request for punitive damages.” Id.

Moss v. Liberty Mutual Fire Insurance Company, cited by Neurointernational Healthcare, is not to the contrary. No. 3:16-CV-677, 2017 WL 4676629, at *4 (M.D. Fla. Aug. 18, 2017). In that case, the defendant moved to dismiss the plaintiff's request for punitive damages because there was no evidence that “would provide a reasonable basis” for punitive damages. Id. at *3. The court agreed and granted the motion. Id. at *8. It reasoned that “the substantive pleading requirements for punitive damages in Fla. Stat. § 768.72 remain intact” post-Cohen. Id. at *4, (quoting Gerlach v. Cincinnati Ins. Co., No. 2:12-CV-322 2012 WL 5507463, at *2 (M.D. Fla. Nov. 14, 2012). In other words, Moss concluded that even though plaintiffs need not seek preclearance from federal courts to request punitive damages, defendants may still move to dismiss the case if plaintiffs’ “conclusory allegations in the complaint are insufficient to entitle a claimant to proceed on a request for punitive damages.” Id.

Neurointernational Healthcare may not put an end to the punitive damages issue before it even arises. Unlike the defendant in Moss, Neurointernational Healthcare did not move to dismiss Smith's request for punitive damages—indeed it cannot, because the Second Amended Complaint has not yet been filed. Instead, it is opposing the motion to amend the complaint under Federal Rule of Civil Procedure 15. But by blocking an amendment on those grounds, I would be acting as a gatekeeper to Smith's punitive damages claims. She would not be able to file a request for punitive damages because I did not give leave. Put differently, I would be reviving § 429.287's procedural component in federal court. That is the very thing Cohen forbids me from doing. 204 F.3d at 1072.

Moreover, I see no reason to decide the punitive damages question on this posture. The Federal Rules of Civil Procedure instruct me to “freely give leave” to amend where justice requires. Fed. R. Civ. P. 15(a)(2). Allowing the amendment would streamline the case by eliminating unnecessary defendants. And Neurointernational Healthcare does not even present an argument that the considerations of Rule 15(a)(2)—plaintiff's improper behavior, undue prejudice, and futility—weigh against allowing the amendment. In re Engle Cases, 767 F.3d at 1108–09. Neither do I believe any of those considerations apply here. Therefore, I conclude that the interests of justice militate in favor of granting the motion to amend.

IV. CONCLUSION

Accordingly, the following is ORDERED:

1. The Entity Defendants’ Motion to Dismiss (Doc. 2) is DENIED.

2. Smith's Motion for Leave to File Second Amended Complaint (Doc. 25) is GRANTED.

3. The Clerk is directed to FILE Smith's proposed Second Amended Complaint (Doc. 25-1) on the docket as the Second Amended Complaint.

4. This action is DISMISSED as to Center for Comprehensive Services, Inc., National Mentor Holdings, Inc., and Taylor Mitchell.

5. No later than January 2, 2024, Neurointernational Healthcare, LLC shall answer the Second Amended Complaint.

ORDERED in Tampa, Florida, on December 19, 2023.

Kathryn Kimball Mizelle, United States District Judge