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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

TRINA DIBRILL, a disabled person, by and through her Mother/Guardian, next friend, Annginette Wheeler Plaintiff, vs. NORMANDY NURSING CENTER, et al., Defendants.

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No. 4:09CV764-DJS

ORDER Now before the Court are: defendants Normandy Associates, Inc., d/b/a Normandy Nursing Center, Kerry Kaufmann, and Clara Mayes' motion to dismiss plaintiff Trina Dibrill's first amended complaint [Doc. #26]; defendants Normandy, Kaufmann, and Mayes' motion to stay discovery [Doc. #30]; plaintiff's motion for leave to amend the first amended complaint [Doc. #32]; plaintiff's motion for default judgment as to defendant Santonio McCoy [Doc. #36]; defendants Normandy, Kaufmann, and Mayes' motion to stay disposition of plaintiff's motion for default judgment as to defendant

McCoy [Doc. #37]; and plaintiff's motion to compel discovery [Doc. #43].1 These matters are ripe for disposition.2

I. MOTION TO AMEND Pursuant to the Federal Rules of Civil Procedure, leave to amend a complaint "should be freely given when justice so requires." Fed.R.Civ.P 15(a)(2). However, there is no absolute

right to amend a pleading, and a finding of "undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment may be grounds to deny a motion to amend." Doe v. Cassel, 403 F.3d 986, 990-91 (8th Cir. 2005)

(quotation omitted). The complaint, and Court finds has reviewed leave the to proposed amend second be amended granted.

that

should

However, the Court is persuaded that whatever defects defendants contend exist in the first amended complaint potentially exist in the proposed second amended complaint. Instead of denying the

pending motion to dismiss without prejudice and order that the motion be reasserted and rebriefed (as is customarily the Court's

Also pending before the Court are Midwest Provider Insurance Company's motion to intervene [Doc. #39], and Midwest's motion to stay proceedings pending disposition of its action seeking declaratory judgment [Doc. #41]. The Court will enter a separate order disposing of these motions. Plaintiff's motion to compel discovery [Doc. #43] was filed on January 20, 2010, and defendants' response time has not yet expired. However, in light of the findings below, the Court has determined that such a response unnecessary.
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practice), the Court will herein further consider the arguments set forth by defendants in their motion to dismiss with regard to plaintiff's second amended complaint.3 II. MOTION TO DISMISS Standard of Review In considering a motion to dismiss a complaint for

failure to state a claim, the Court must assume all the facts alleged in the complaint are true, and must liberally construe the complaint in the light most favorable to the plaintiff.4 A

Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999).

motion to dismiss should not be granted unless it appears, beyond a doubt, that the plaintiff can prove no set of facts which would allow relief. Id. "A motion to dismiss should be granted if it

appears beyond doubt that the plaintiff can prove no set of facts

A fully briefed motion to dismiss has already been denied without prejudice to allow for the filing of the amended complaint. Defendants reasserted their motion to dismiss, making substantially the same argument. The Court anticipates that the same motion and the same argument would be made with regard to the second amended complaint. In their motion to dismiss, defendants seek dismissal for lack of subject matter jurisdiction. Doc. #26, p. 5. However, the basis of defendants' argument is that plaintiff fails to allege sufficient facts to support a necessary element of her 42 U.S.C.

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