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Finke v. The Ensign Group, Inc.

United States District Court, D. Kansas

September 24, 2019

GENE FINKE, Plaintiff,
v.
THE ENSIGN GROUP, INC, et al., Defendants.

          MEMORANDUM & ORDER DENYING MOTION TO AMEND

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now before the Court is Plaintiff’s Motion to Amend Complaint (Doc. 34), in which he requests leave to Amend his Complaint pursuant to Fed.R.Civ.P. 15 and D. Kan. Rule 15.1 to “insure that such pleading meets the requirements of Fed.R.Civ.P. 8 with respect to the claims of understaffing alleged against Defendants The Ensign Group, Inc., Ensign Services, Inc., Gateway Healthcare, Inc. and Maples Hills Healthcare, Inc.” (collectively “the Ensign Defendants”). (Doc. 34, at 4.) Having reviewed the submissions of the parties, Plaintiff’s motion is DENIED.

         FACTUAL BACKGROUND

         Plaintiff was a resident of a licensed skilled nursing facility, Maple Hills Healthcare, Inc. doing business as Healthcare Resort of Shawnee in Overland Park, Kansas (hereinafter “Maple Hills”). He alleges that he sustained “an avoidable fall” at Maple Hills on August 8, 2017, resulting in a left distal fibula fracture and medial malleolus fracture. (Doc. 1.) Defendants contend that Plaintiff’s fall occurred “during physical therapy while performing gait training with assistance from the physical therapy staff, ” which operates independently from Maple Hills. (Doc. 36, at 1.) Defendants continue that Maple Hills’ “nursing staff was not present during [Plaintiff’s] alleged fall, and had no involvement with the care provided at the time of the alleged fall.” (Id.)

         Regardless of who was involved and/or at fault, Plaintiff had an operation on the left ankle fracture on August 9, 2017. (Doc. 1.) Thereafter, he became a resident of Post Acute Rehabilitation Hospital of Overland Park (hereinafter “the Rehab hospital”) from approximately October 26, 2017, to October 30, 2017. (Id.)

         Plaintiff also alleges that on October 27, 2017, Rehab hospital staff pinched his right leg while transferring him in a hoyer lift. According to Plaintiff, this “caused a hematoma and required surgical debridement and continuing wound care.” (Id.) Plaintiff alleges permanent injury based on the conduct of Defendants.

         The parties participated in a discovery conference with the undersigned Magistrate Judge on June 28, 2019, regarding a dispute with Plaintiff’s discovery on issues related to nursing staffing at Maple Hills. The Ensign Defendants objected to the Requests regarding the alleged understaffing as “overbroad, unduly burdensome, and sought documentation which was neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, among other things.” (Doc. 36, at 2.)

         According to Plaintiff, during the discovery conference, “Judge Gale expressed concern that Plaintiff’s claims of understaffing related to the fall … were not insufficient [sic].” (Doc. 34, at 3.) According to Defendants,

Judge Gale indicated the correlation between the alleged nurse staffing issues and the fall during physical therapy was not clear. He suggested plaintiff undertake depositions to establish whether any alleged nurse staffing issues had any impact on the physical therapy care provided to Mr. Finke. If this deposition testimony established a connection between these issues, Judge Gale suggested the discovery Requests could be reevaluated.

(Doc. 36, at 2.) Plaintiff contends that, following the discovery conference, it

engaged in additional discussions with his retained experts in this matter to inquire whether more specific allegations could be made regarding the relationship of the understaffing at Defendants’ facility, Healthcare Resort of Shawnee, and the injuries Plaintiff sustained while in their care and custody.

(Doc. 34, at 3-4.)

         Plaintiff brings the present motion pursuant to Fed.R.Civ.P. 15 and D. Kan. Rule 15.1 “to insure that such pleading meets the requirements of Fed.R.Civ.P. 8 with respect to the claims of understaffing alleged against Defendants.” (Id., at 4.) Because the deadline to amend has passed, Plaintiff also seeks leave to modify the scheduling order pursuant to Fed.R.Civ.P. 16. (Id.)

         Defendants respond that the Motion to Amend “was filed almost two months after this deadline passed” and that “no depositions have been taken and no relevant written discovery has been exchanged between the parties since our conference call with Judge Gale.” (Doc. 36, at 2.) Defendants continue that the motion “is being pursued in bad faith for the sole purpose of broadening the scope of discovery” and constitutes “tactical maneuvering by plaintiff … ...


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