United States District Court, N.D. Illinois, Eastern Division
MANISH S. SHAH, District Judge.
Defendant's motion to dismiss  is granted in part, denied in part. Count II is dismissed, Count I is not dismissed.
Plaintiff was living at defendant's assisted living facility when she was attacked by a fellow resident. According to plaintiff, defendant knew or should have known that the attack was likely to occur, and so defendant's failure to reasonably protect her amounted to negligence and medical malpractice. Defendant now moves to strike plaintiff's negligence claim and to dismiss her malpractice claim. For the following reasons, defendant's motion is granted in part and denied in part.
"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). In reviewing the sufficiency of a complaint, I accept the well-pleaded facts as true. Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013).
Federal Rule of Civil Procedure 12(f) provides that on a party's motion, I may "strike from a pleading... any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Motions to strike are ordinarily disfavored because they often function only to delay resolution of a case, but "where... motions to strike remove unnecessary clutter from the case, they serve to expedite, not delay." Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).
Plaintiff Shirley Hine resided at an assisted living facility owned and operated by defendant Sunrise Senior Living Management, Inc. Dkt. 25 ¶¶ 5-6. On July 17, 2012, she was assaulted by a fellow resident. Dkt. 25-1 at 3. Plaintiff's attacker had already attacked her at least once while the two were living at defendant's facility. Id. Despite defendant's knowledge of the "serious risk for injury that this resident posed to [plaintiff] and other residents, [defendant] failed to take the necessary actions[, ] assessments[, ] procedures[, ] and monitoring required by the standard of care." Id.
Plaintiff's first amended complaint alleges counts for "Negligence" and "Medical Malpractice." See Dkt. 25 at 1-3. In support of the latter, and pursuant to 735 ILCS 5/2-622, plaintiff attached an "Affidavit" and "Health Professional's Report" to her complaint. Dkt. 25-1 at 2-3. The report provides plaintiff's reviewing health professional's qualifications and describes his or her familiarity with the case. Id. The physician sets forth the entirety of his or her analysis of the case's merit in the report's last three paragraphs:
8. Upon Shirley Hine's admission to Sunrise Assisted Living of Palos Park she had macular degeneration, hypothyroidism and dementia. She was legally blind.
9. On July 17, 2012[, ] Ms. Hine was assaulted by another resident at the facility. That resident also had a history of dementia and had previously assaulted Ms. Hine. Despite Sunrise Assisted Living of Palos Park's awareness and knowledge of the serious risk for injury that this resident posed to Ms. Hein and other residents, they failed to take the necessary actions[, ] assessments[, ] procedures[, ] and monitoring required by the standard of care.
10. The assault physical [sic] and cognitive trauma including fracture of her shoulder were all foreseeable and avoidable. Based upon my experience, training, knowledge and review of the medical records in this case, I believe that that [sic] there is a reasonable and ...