United States District Court, S.D. Georgia, Waycross Division
GEORGE RAYMOND HESTER, JR., as administrator of the Estate of Teresa Hester and as surviving spouse of Teresa Hester, Plaintiff,
UMR, INC. & MEMORIAL HEALTHCARE GROUP, INC. Defendants.
LISA GODBEY WOOD UNITED STATES DISTRICT JUDGE SOUTHERN
DISTRICT OF GEORGIA
the Court are Defendants UMR, Inc.'s ("UMR")
Motion to Dismiss (Dkt. No. 35) and Memorial Healthcare
Group, Inc.'s ("Memorial") Motion to Dismiss
(Dkt. No. 36) . Plaintiff George Raymond Hester also brings a
Motion to Add Memorial Family Practice Associates, LLC
("Memorial Family") as a Defendant (Dkt. No. 61) .
The motions have been fully briefed and are now ripe for
decision. For the reasons stated below, UMR's Motion to
Dismiss (Dkt. No. 35) is GRANTED and
Memorial's Motion to Dismiss (Dkt. No. 36) is
DENIED. In addition, Plaintiff's Motion
to Add Memorial Family (Dkt. No. 61) is
facts stated herein are taken solely from Plaintiff Amended
Complaint and are assumed to be true, pursuant to Rule
12(b)(6). Plaintiff was the husband of Teresa Hester
("Mrs. Hester"). Mrs. Hester received gastric
lapband surgery at a hospital operated by Memorial on March
3, 2015. Dkt. No. 30 ¶¶ 13-14. Plaintiff alleges
that a surgeon in the employ of Memorial assured Mrs. Hester
that the surgery would be fully covered through her
insurance, and if not, that the rest would be covered by
Medicare. Id. ¶¶ 18-19. Plaintiff alleges
that the surgery was ultimately not covered by either Mrs.
Hester's insurance or Medicare. Mrs. Hester died on March
2, 2016. Id. ¶¶ 20-21. Plaintiff alleges
that Mrs. Hester's death was due to complications from
surgery. Plaintiff further alleges that Mrs. Hester never
would have elected to undergo surgery had it not been for
Defendants' representations that the surgery would be
covered by Medicare. Id. ¶ 21.
now brings an action for negligent misrepresentation against
all Defendants and seeks to obtain in excess of two million
dollars in damages. The Court previously granted the
Plaintiff s Motion to Amend, finding that Plaintiff was
required to meet the heightened pleading standard of Federal
Rule of Civil Procedure 9(b). Dkt. No. 29. The Court now
considers Defendants' renewed Motions to Dismiss, which
argue that Plaintiff has failed to meet that standard.
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), a district court must accept as true the facts set
forth in the complaint and draw all reasonable inferences in
the plaintiff's favor. Randall v. Scott, 610
F.3d 701, 705 (11th Cir. 2010). Although a complaint need not
contain detailed factual allegations, it must contain
sufficient factual material "to raise a right to relief
above the speculative level." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). At minimum, a
complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory."
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500
F.3d 1276, 1282-83 (11th Cir. 2007) (per curiam) (quoting
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683 (11th Cir. 2001)).
when an allegation sounds in fraud, the higher pleading
standard of Federal Rule of Civil Procedure 9(b) applies.
Under this standard, the plaintiff must state with
"particularity the circumstances constituting
fraud." Fed.R.Civ.P. 9(b). These circumstances include
"(1) the precise statements, documents, or
misrepresentations made; (2) the time, place, and person
responsible for the statement; (3) the content and manner in
which these statements misled [Plaintiff]; and (4) what the
defendants gained by the alleged fraud." Brooks v.
Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1381 (11th Cir. 1997).
Court previously granted Plaintiff an opportunity to amend
his Complaint, with the caveat that he would need to meet the
more exacting standard of Federal Rule of Civil Procedure
9(b) in order to survive dismissal, as his allegations sound
in fraud. Dkt. No. 29. Plaintiff makes the allegation that
"Mrs. Hester was assured that her surgical procedure on
March 3, 2015 would be covered by her insurance with
UMR." Dkt. No. 30 ¶ 17.
paragraphs from Plaintiff's Amended Complaint add more
detail, such as the claim that Mrs. Hester's surgeon, Dr.
Arundhati Rao ("Dr. Rao"), made certain
representations that Mrs. Hester's surgery would be
covered by insurance and Medicare. Id. ¶¶
18-19. In addition, while not providing a specific date,
Plaintiff alleges that the statements were made during
"the final pre-op visit" at Memorial's facility
in Jacksonville. Id. ¶ 19. These allegations
tell Defendant Memorial both when the misrepresentation
occurred (the final pre-op visit) and where it occurred (at
the Jacksonville facility). Finally, Plaintiff alleges that
Memorial had a financial motivation in making the
misrepresentation, in that it sought to gain Mrs. Hester as a
allegations against UMR are far less specific. Plaintiff did
not identify the person responsible for the alleged
misrepresentation, nor did he identify where it occurred. In
fact, Plaintiff asserts that neither he nor Mrs. Hester ever
had any contact with UMR or its representatives. Dkt. No. 30
¶ 19. As such, Plaintiff has not put UMR on notice as to
either the person who made the misrepresentation or where the
misrepresentation was made.
while Plaintiff's allegations against Memorial meet the
heightened pleading standard under Rule 9(b), his allegations
against UMR do not and will be dismissed.
argues that even if Plaintiff has provided more particularity
to comply with Rule 9(b), Plaintiff nonetheless has failed to
state a claim for relief, because he has not stated a claim
for negligent misrepresentation. Memorial cites this
Court's ruling in Arch Insurance Co. v. Clements,
Purvis & Stewart, P.C. as support for the
proposition that Plaintiff's Amended Complaint should be
dismissed. Dkt No. 35 p. 4; 850 F.Supp.2d 1371 (S.D. Ga.
2011), aff'd, 434 F.App'x 826 (11th Cir.
2011) (per curiam). However, Plaintiff's allegations are
distinguishable from those set out in Arch. That
case involved a defendant that had allegedly failed to
complete construction audits in a timely manner. 850
F.Supp.2d at 1371. The plaintiff sustained damages and sued
for negligent ...