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Estate of Litwin v. Emeritus Corp.

United States District Court, D. New Jersey

June 5, 2015

ESTATE OF FRANCES T. LITWIN and ROBERT C. LITWIN, individually and as Executor of the Estate of Frances T. Litwin, Plaintiffs,
EMERITUS CORPORATION, et al., Defendants.

Saul G. Gruber, Esquire, Victoria A. Schall, Esquire, The Gruber Firm, LLC, Mount Laurel, New Jersey, Attorneys for Plaintiffs.

Robert Wright, Esquire, White & Williams, LLP, Newark, New Jersey, and Jaime M. Merritt, Esquire, White & Williams, LLP, New York, New York, Attorneys for Defendants Emeritus Corporation, Emeritus Senior Living, Summerville Senior Living, Inc., Summerville At Voorhees, LLC d/b/a Emeritus at Voorhees, Emeritus at Voorhees, Summerville Management, LLC and HCP EMFIN Properties LLC.


NOEL L. HILLMAN, District Judge.

Presently before the Court is a motion [Doc. No. 14] to dismiss filed by Defendants Emeritus Senior Living (hereafter, "ESL"), Summerville Senior Living, Inc. (hereafter, "SSLI"), Emeritus at Voorhees (hereafter, "Voorhees"), and HCP EMFIN Properties LLC (hereafter "HCP") (collectively, "Defendants"). Defendants seek dismissal of the claims in the First Amended Complaint against ESL and Voorhees on the basis that these defendants are not corporate entities capable of being sued, as they are registered trade names for other corporate defendants already named this action. Defendants seek dismissal of the claims against SSLI and HCP pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Plaintiffs filed opposition to the motion.

The Court has considered the submissions of the parties and decides this matter pursuant to Fed.R.Civ.P. 78. For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.


This case arises out of a fall purportedly sustained by Francis T. Litwin while she was a resident at Emeritus at Voorhees on or about May 22, 2013. (First Am. Compl. 8 ¶¶ 1, 4.) According to the First Amended Complaint, Litwin required assistance with mobility due to tremors and a frozen left shoulder. (Id. at 9 ¶ 8.) Plaintiffs allege that Litwin suffered an unwitnessed fall and was then admitted to Cooper Trauma Center with a diagnosis of subarachnoid hemorrhage, subdural hematoma, and an intravetricular hemorrhage. (Id. at ¶ 13.) Litwin died on June 4, 2013 due to the subarachnoid hemorrhage. (Id. at ¶ 14.) Plaintiffs assert claims for gross negligence (Count I), negligence per se (Count II), deviation of standard of care and gross neglect (Count III), negligent supervision and negligent hiring (Count IV), improper management (Count V), punitive damages (Count VI), resident rights violations (Count VII), fictitious individual/entity negligence (Count VIII), respondeat superior (Count IX), apparent authority (Count X), survival (Count XI), and wrongful death (Count XII).

Defendants Emeritus Corporation, Summerville at Voorhees, LLC d/b/a Emeritus at Voorhees, and Summerville Management, LLC dispute that they breached any applicable standard of care, but they concede that they are the only three defendants who have been properly joined in this action. (Mem. of Law in Supp. of Mot. to Dismiss [Doc. No. 14-1] (hereafter, "Defs.' Br.") 2-3.) Defendants contend that the four moving defendants - SSLI, Voorhees, ESL and HCP - were not properly joined. Defendants argue that Voorhees is not a corporate entity but is rather a registered trade name for Defendant Summerville at Voorhees (Decl. of Michele Hughes (hereafter, "Hughes Decl.") ¶ 10); likewise, Defendants represent that ESL is not a corporate entity but is a national trademark and a registered trade name of Defendant Emeritus Corporation (id. ¶ 3.) Because they are not corporate entities, Voorhees and ESL contend that they are not capable of being sued, and they therefore seek dismissal of the claims against them for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Defs.' Br. 10.) Plaintiffs dispute that ESL and Voorhees are not companies, relying on the allegations in their complaint in support of such contention. (Pls.' Response to Mot. to Dismiss First Am. Compl. [Doc. No. 19] (hereafter, "Pls.' Opp. Br.") 5.)

With respect to Defendants SSLI and HCP, Defendants contend that these entities had no role in the management and/or operation of Emeritus at Voorhees (hereafter, the "Community"), the assisted living community where Litwin resided at the time of her fall. (Defs.' Br. 10.) According to Defendants, the First Amended Complaint fails to make any specific allegations of wrongdoing against SSLI and HCP. (Id.) Defendants assert that HCP was only the third-party landowner of the real property where the Community is based, which had no role in the management or operation of the Community, and that there is no basis to hold the property lessor liable for the alleged wrongdoing of its lessee. (Defs.' Br. 7, 12.) Additionally, according to Defendants, there is no basis to hold HCP liable under an alter ego, agency or joint enterprise theory of liability. (Id. at 14.) Defendants also argue that SSLI was merely an owner/member of two of the defendant limited liability companies (hereafter, "LLCs"), and its mere membership in the LLCs is not a basis to confer liability based upon the acts of the LLCs. (Id. at 15-16.)


Plaintiffs brought suit in the Superior Court of New Jersey, and the case was removed to this Court on the basis of diversity jurisdiction. Defendants' removal notice, however, did not sufficiently establish diversity jurisdiction, and the Court required Defendants to demonstrate that the Court may exercise subject matter jurisdiction over this matter. Defendants responded on December 11, 2014. Upon reviewing Defendants' response, the Court is satisfied that there is complete diversity among the parties and that subject matter jurisdiction is appropriate under 28 U.S.C. § 1332.


A. Motion to Dismiss ESL and Voorhees as Defendants

Defendants move for dismissal of ESL and Voorhees under Fed.R.Civ.P. 12(b)(1), 12(b)(2), and 12(b)(6). The Court finds that the proper rule to address Defendants' motion is Fed.R.Civ.P. 17(b), which governs who may sue or be sued. See, e.g., Brandl v. Ace USA, Civ. A. No. 10-03512, 2011 WL 129422, at *8 (E.D. Pa. Jan. 14, 2011)(granting motion to dismiss under Rule 17(b) because defendant was not a "person" subject to court's jurisdiction); Reid v. Kraft Gen. Foods, Inc., Civ. A. No. 93-5796, 1995 WL 262531, at *2 n.6 (E.D. Pa. Apr. 27, 1995) (granting motion to dismiss pursuant to Rule 17(b)); Soveral v. Franklin Trust, Civ. ...

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