United States District Court, S.D. Illinois
HERNDON, UNITED STATES DISTRICT JUDGE
the Court is defendant's motion to dismiss negligence
Count II and negligent infliction of emotional distress Count
V, pursuant to Fed.R.Civ.P. 12(b)(6); and, motion to strike
pursuant to Fed.R.Civ.P. 12(f)(2) (Doc. 22).
opposes (Doc. 38). Based on the following, defendant's
motion is GRANTED IN PART and DENIED IN PART and plaintiff is
granted leave to amend.
Teri Dawson (“Dawson”) originally filed this
action in the Circuit Court of the First Judicial Circuit,
Jackson County, Illinois (Doc. 1-1). She asserts claims for
negligence and negligent infliction of emotional distress
(“N.E.I.D”) against Southern Illinois Healthcare
d/b/a Memorial Hospital of Carbondale (“SIHS”),
stemming from a surgical procedure that failed to properly
seal a port closure resulting in herniation and small bowel
obstruction. Following surgery, Dawson sustained severe
abdominal complications from an incisional hernia, and
suffered nausea, vomiting, diarrhea, and probable gastritis;
and, now is diagnosed with posttraumatic stress disorder,
depression, and anxiety-all of which require psychological
counseling, and prescription of antidepressant medications.
For relief, Dawson requests monetary damages and costs.
defense, SIHS argues failure to sufficiently assert medical
negligence and N.I.E.D. claims due to defective pleading
(Doc. 22). Specifically, arguing that Dawson's required
attorney's affidavit (Doc. 1-1 at 16-17), does not
satisfy the pleading requirements of 735 Ill. Comp. Stat.
5/2-622(a)(1); and, declaring the complaint-as a whole-fails
to support allegations of institutional negligence (Doc. 22).
As a result, SIHS requests the Court dismiss negligence Count
II and N.I.E.D. Count V pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim (Id. at 3). In addition,
SIHS contends that paragraph 34 and 35(a) & (d) of
negligence Count II should be stricken because it owes no
duty to ensure Dawson's safety or ensure doctors
utilizing its facilities will not act negligently in caring
for patients (Id. at 4); and, Count V should follow
suit under Fed.R.Civ.P. 12(f)(2), because allegations in
N.I.E.D. Count V mirror those in negligence Count II.
12(b)(6) permits a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted.
Hallinan v. Fraternal Order of Police Chi. Lodge
No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The
Supreme Court explained in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), that Rule 12(6)(b)
dismissal is warranted if the complaint fails to set forth
“enough facts to state a claim to relief that is
plausible on its face.” Notice pleading remains all
that is required in a complaint, even though federal pleading
standards were overhauled by Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A
plaintiff still must provide only ‘enough detail to
give the defendant fair notice of what the claim is and the
grounds upon which it rests and, through his allegations,
show that it is plausible, rather than merely speculative,
that he is entitled to relief.' ” Tamayo v.
Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
2008) (citation omitted).
Seventh Circuit offers further instruction on what a civil
action must allege to endure 12(b)(6) dismissal. In Pugh
v. Tribune Co., 521 F.3d 686, 699 (7th Cir.
2008), the Court reiterated the standard: “surviving a
Rule 12(b)(6) motion requires more than labels and
conclusions”; the complaint's allegations must
“raise a right to relief above the speculative
level.” A plaintiff's claim “must be
plausible on its face, ” that is, “the complaint
must establish a non-negligible probability that the claim is
valid.” Smith v. Med. Benefit Admin. Grp.,
Inc., 639 F.3d 277, 281 (7th Cir. 2011).
Rule 12(f) the court “may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
Motions to strike are generally disfavored but may be used to
expedite a case and “remove unnecessary clutter.”
Heller Fin., Inc. v. Midwhey Powder Co.,
Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); see also
Wiliams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400
(7th Cir. 1991) (stating motions to strike will not be
granted unless it appears to certainty that plaintiffs would
succeed despite any state of facts which could be proved in
support of defense and are inferable from pleadings).
maintains Dawson failed to establish the author of her
medical report met requisite qualifications of 735 Ill. Comp.
Stat. 5/2-622. Dawson contends requirements specified in
section 2-622 are inapplicable because her claims are based
upon “institutional negligence” not
“healing art malpractice;” and, even if ...