United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
case arises from an unexpected home birth that appears to
have a happy ending. On November 5, 2014, a pregnant Teresa
Mary Palmer awoke around 1:00 a.m. with cramps and pain. She
called her OB/GYN to report the symptoms. Ms. Palmer's
doctor told her that she had nothing to worry about but to
call back if her pain increased. Around 2:00 a.m., Ms.
Palmer's husband, mother, and father drove her to Shawnee
Mission Medical Center (“SMMC”). SMMC admitted
Ms. Palmer to its Birth Center, where non-physicians examined
her and observed her for more than five hours. Eventually,
SMMC diagnosed Ms. Palmer with false labor and, around 7:30
a.m., discharged her from the hospital.
home, Ms. Palmer continued to experience painful cramps of
longer duration and increased frequency. Her family called
911, and EMS personnel responded. With the assistance of EMS
personnel, Ms. Palmer gave birth to her son at 9:14 a.m., on
the floor of a bathroom in her home. Despite the
unanticipated location of the birth, Ms. Palmer never alleges
that she or her infant son sustained any physical injuries
from the labor and delivery at home.
on these facts, Ms. Palmer, her husband, her mother, and her
father bring this pro se lawsuit against SMMC and Mid America
Physician Services, LLC (“MAPS”) asserting five
claims for relief: (1) violation of the Emergency Medical
Treatment and Active Labor Act (“EMTALA”), 42
U.S.C. § 1395dd, against SMMC; (2) strict liability
against SMMC and MAPS; (3) res ipsa loquitur against SMMC and
MAPS; (4) intentional tort liability against SMMC and MAPS;
and (5) breach of contract against SMMC and MAPS.
matter comes before the court on two motions to dismiss.
Docs. 51, 69. Both SMMC and MAPS ask the court to dismiss the
claims that plaintiffs assert against them under Federal Rule
of Civil Procedure 12(b)(6) for failing to state a claim for
relief. For the reasons explained below, the court grants
defendants' motions in part and denies them in part.
Motions to Strike
turning to the motions to dismiss, the court addresses two
pending Motions to Strike. Docs. 65, 76. First, defendant
SMMC moves to strike plaintiffs' Response to its Motion
to Dismiss. Doc. 65. SMMC invokes Federal Rule of Civil
Procedure 11(b)(1) and D. Kan. Rule 11.1, asserting that the
court should strike plaintiffs' Response because
plaintiffs filed it out of time and without leave of court
upon a showing of excusable neglect. Second, plaintiffs move
to strike defendant SMMC's Reply to SMMC's Motion to
Dismiss. Doc. 76. Plaintiffs invoke Federal Rule of Civil
Procedure 12(f), asserting that the court should strike the
portion of SMMC's Reply that responds to plaintiffs'
accusation that SMMC falsified medical records.
court begins with an observation about an increasing trend
among litigants. This trend consists of parties invoking
these Rules in their motion practice, preferring to file
motions to strike an opposing party's submission instead
of simply filing a response or reply that addresses the
improprieties or weaknesses of the opposing party's
submission. It is a perplexing trend. This practice
needlessly multiplies the motions that the court must rule,
clogs the court's docket, and wastes judicial resources.
And, importantly, the Rules that the parties invoke here
provide the court with no authority to strike the requested
11(b)(1) provides that a party presenting a filing to the
court certifies that the party is not presenting the filing
“for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of
litigation.” Fed.R.Civ.P. 11(b)(1). A court may award
sanctions under Rule 11(c) for a violation of subsection (b),
but only “after notice and a reasonable opportunity to
respond.” Fed.R.Civ.P. 11(c)(1). A party also may move
for sanctions under this Rule, but subsection (c)(2) requires
the party to file a motion for sanctions
“separately” and the rule includes a “safe
harbor” provision. This safety mechanism requires the
moving party to serve the motion on the opposing party 21
days before filing it, thus giving the opposing party an
opportunity to correct the issue. Fed.R.Civ.P. 11(c)(2).
Here, SMMC has not filed a separate motion, and it provides
no information showing that it has complied with Rule
11(c)(2)'s requirements. As our court has observed, the
“failure to comply with these procedural requirements
precludes an award of Rule 11 sanctions, and might even
justify Rule 11 sanctions against [the moving party].”
Berg v. Frobish, No. 12-1123-KHV, 2015 WL 8966960,
at *1 (D. Kan. Dec. 15, 2015). The court denies SMMC's
motion to strike for this reason.
12(f) provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Our court has refused to apply Rule 12(f)
to strike responses and replies to motions because this Rule
applies only to “pleadings” and a response or a
reply to a motion “is not a ‘pleading' that
the [c]ourt may strike under Rule 12(f).” Fox v.
Pittsburg State Univ., __ F.Supp.3d __, 2017 WL 2735475,
at *2 (D. Kan. June 26, 2017) (citing Fed.R.Civ.P. 7(a)
(listing documents considered pleadings)); see also
Williams v. Alpine Banks of Colo., No. Civ. A.
05CV02475WDMME, 2006 WL 905333, at *2 (D. Colo. Apr. 7, 2006)
(denying a motion to strike because “[m]otions, briefs
in support of motions, responses to motions, replies to
responses to motions, and other papers are not pleadings
under the Federal Rules and cannot be stricken by the [c]ourt
under Rule 12(f)”); Watkins v. New Castle
Cty., 374 F.Supp.2d 379, 394 (D. Del. 2005) (denying a
motion to strike because “Rule 12(f) applies only to
pleadings, not motions and related documents.”). Here,
plaintiffs moved to strike part of defendant SMMC's Reply
to its Motion to Dismiss. The Reply is not a pleading that
the court may strike under Rule 12(f). The court thus denies
plaintiffs' Motion to Strike for this reason.
our court disfavors motions to strike. Landrith v.
Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D.
Kan. Jan. 19, 2012), aff'd, 505 F. App'x 701
(10th Cir. 2012); Semsroth v. City of Wichita, No.
06-2376-KHV-DJW, 2008 WL 45521, at *2 (D. Kan. Jan. 2, 2008);
Nwakpuda v. Falley's, Inc., 14 F.Supp.2d 1213,
1215 (D. Kan. 1998). Courts usually deny motions to strike
absent a showing of prejudice against the moving party.
Semsroth, 2008 WL 45521, at *2. And, “any
doubt [about] the utility of the material to be stricken
should be resolved against the motion to strike.”
Landrith, 2012 WL 171339, at *1.
the parties here had invoked the proper authority in their
Motions to Strike, the court finds no reason to strike any of
the requested filings. Defendant SMMC moves to strike
plaintiffs' Response to SMMC's Motion to Dismiss
because plaintiffs filed it six days late and
without leave of court upon a showing of excusable neglect.
Although the court does not condone dilatory filing
practices, SMMC fails to show that it sustained any prejudice
from the late filing. These facts do not support striking
Motion to Strike seeks to strike a portion of SMMC's
Reply to the Motion to Dismiss where SMMC asserts that
plaintiffs improperly and falsely have accused SMMC of
falsifying medical records. Plaintiffs' Motion never
provides a reason for the court to strike the material from
the record. Instead, plaintiffs merely dispute SMMC's
denials that it falsified medical records. Plaintiffs assert
that they have a valid basis to accuse SMMC of falsifying
medical records. And, plaintiffs cite several attached
exhibits-medical records and an investigation report-that,
plaintiffs contend, support their accusations against SMMC.
Plaintiffs' Motion demonstrates that the parties sharply
disagree whether plaintiffs' accusations against SMMC are
true. But, none of plaintiffs' arguments provide any
reason for the court to strike SMMC's Reply.
court thus denies defendant SMMC's Motion to Strike (Doc.
65) and plaintiffs' Motion to Strike (Doc. 76).
Motions to Dismiss
court now turns to the two pending Motions to Dismiss.
following facts are taken from plaintiffs' Second Amended
Complaint (Doc. 23). The court accepts them as true and views
them in the light most favorable to plaintiffs. Burnett
v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,
1235 (10th Cir. 2013) (citing Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court
also construes plaintiffs' allegations liberally because
they proceed pro se. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (holding that courts must
construe pro se litigant's pleadings liberally and hold
them to a less stringent standard than formal pleadings
drafted by lawyers).
1:00 a.m. on November 5, 2014, Teresa Mary Palmer awoke with
cramps, pain, and a vaginal bloody discharge. She called the
number on her OB/GYN's business card and spoke with a
nurse who said a doctor would call her back. About five
minutes later, a doctor returned the call and told her that
she had “nothing to worry about, ” but advised
her to go to the hospital if her pain increased.
2:00 a.m., Gary Dean Grider (Ms. Palmer's husband),
Teresa Marita Palmer (Ms. Palmer's mother), and James
William Palmer (Ms. Palmer's father) drove Ms. Palmer to
SMMC's Birth Center. At 2:32 a.m., SMMC admitted Ms.
Palmer to the Labor Triage section for observation. Ms.
Palmer complained of a new vaginal bloody discharge,
abdominal cramps, and pain.
Ms. Palmer's admission to the Birth Center, several
different healthcare providers-none were physicians-examined
her many times. These repeated examinations produced
inconclusive results. Also, SMMC performed fetal monitoring
on Ms. Palmer. The data from this monitoring was recorded on
a 46-page chart. But, pages 26 to 31 were blank because the
fetal monitor was not working properly. SMMC maintains an
on-call, in-house, Board-certified, OB Hospitalist (a
physician) who is available 24 hours a day to respond to
obstetrical patients. SMMC never contacted this physician to
provide treatment for Ms. Palmer.
observed Ms. Palmer for more than five hours. During this
period of observation, Ms. Palmer demonstrated increasingly
painful cramps. But, SMMC eventually diagnosed Ms. Palmer
with false labor (Braxton Hicks contractions). And, at 7:38
a.m., SMMC discharged Ms. Palmer to her home. Although Ms.
Palmer was able to walk without assistance when SMMC admitted
her, she required a wheelchair when SMMC discharged her
because she was in so much pain. While sitting in the
wheelchair, Ms. Palmer experienced a particularly painful
cramp in front of several providers and medical staff. Ms.
Palmer had to stand up and bend over to endure the pain this
cramp caused her.
Ms. Palmer returned home, she continued to experience
increasingly painful cramps of longer duration and increased
frequency. Ms. Palmer followed her discharge instructions,
took a Tylenol, and tried to sleep. She also tried to relax
in a warm bath but painful cramps gave her an uncontrollable
urge to scream and pound the wall with her fist.
family eventually called 911, and EMS personnel responded.
When an EMS technician entered the house, he heard Ms.
Palmer's screams coming from a bathroom on the other side
of the house. The EMS technician said, “That's not
Braxton Hicks.” EMS personnel connected a fetal
monitoring device to Ms. Palmer and examined her on the
bathroom floor. Based on the examination, EMS personnel told
the family that they would have to deliver the baby in the
bathroom. At 9:14 a.m., Ms. ...