1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

LONDA CLAYBON, as Independent

Administrator for the Estate of Carrie 

Claybon, Deceased, 

Plaintiff,

v.

SSC WESTCHESTER OPERATING 

COMPANY LLC, a Foreign Limited 

Liability Company d/b/a Westchester 

Health and Rehabilitation Center,

Defendant.

No. 20-cv-04507

Judge Thomas M. Durkin

MEMORANDUM ORDER AND OPINION

Pursuant to the Illinois Survival Act, 755 ILCS 5/27-6, Plaintiff Londa Claybon

(“Plaintiff”) brings this action as independent administrator for the estate of Carrie 

Claybon (“Claybon”) against Defendant SSC Westchester Operating Company LLC 

d/b/a Westchester Health and Rehabilitation Center. Plaintiff alleges that Claybon 

contracted COVID-19 and later died from the virus as a result of Westchester’s 

purported violations of the Illinois Nursing Home Care Act, 210 ILCS 45/1–101 et seq. 

Westchester moves to dismiss and strike the complaint pursuant to Federal Rules of 

Civil Procedure 12(b)(6) and 12(f). For the following reasons, Westchester’s motion to 

dismiss is denied, while its motion to strike is denied in part and granted in part. 

Background

This case arises out of the COVID-19 pandemic and the circumstances 

surrounding it. In March 2020, when the pandemic began to take shape, Carrie 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 1 of 19 PageID #:360
2

Claybon, then 81 years-old, lived at the Westchester Health and Rehabilitation 

Center. As a nursing home, Westchester employs nurses and staff who are largely 

responsible for the care of residents like Claybon.

Plaintiff alleges that starting on or around March 9, 2020, several members of 

Westchester’s nursing staff began to show symptoms of COVID-19. At least one member 

tested positive for the virus, while another was hospitalized. Westchester allegedly knew 

that multiple staff members were symptomatic, and also knew about the positive test 

result, but nevertheless instructed staff—including the diagnosed nurse—to report to 

work. On March 16, after several staff members informed Westchester of their symptoms, 

Claybon told her providers that she had developed a “dry and unproductive cough” and 

experienced shortness of breath. She ran a fever of 102 degrees the following week and 

died a few days later. 

Plaintiff largely blames Westchester for Claybon’s death. She points to the decision

requiring symptomatic nurses to report to work, and alleges that personal protective 

equipment (“PPE”)—including masks, gowns, and face shields—were either not provided 

to Westchester staff or misplaced. She also claims that Westchester failed to implement

pandemic-related guidelines issued by the Center for Medicare & Medicaid Services,

and further alleges that Westchester had been repeatedly cited by the Illinois 

Department of Public Health between 2011 and 2019 for issues concerning infection 

control practices. 

As the events at Westchester were unfolding in March 2020, Illinois Governor 

J.B. Pritzker was issuing a series of proclamations and executive orders related to 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 2 of 19 PageID #:361
3

pandemic. Invoking his authority under the Illinois Emergency Management Agency 

Act (“EMAA”), 20 ILCS 3305/1 et seq., Governor Pritzker issued his first proclamation 

on March 9, declaring Illinois a disaster area and directing state agencies to 

coordinate their response efforts. The proclamation noted that COVID-19 is a novel 

illness and that certain populations, including the elderly and those with serious 

chronic medical conditions, were at a higher risk of developing more severe illness as 

a result of the virus. The proclamation also noted that the World Health Organization 

had already reported more than 100,000 confirmed cases of COVID-19 worldwide, 

and that at least 11 people in Illinois had been diagnosed with the virus, with an 

additional 260 individuals designated as persons under investigation. 

On April 1, 2020, just days after Claybon died, Governor Pritzker issued 

Executive Order 2020-19 that again declared Illinois a disaster area, and directed 

health care facilities to “render assistance” in support of the State’s response efforts

(hereinafter the “Executive Order”). The Executive Order explained that “rendering 

assistance” must “include measures such as increasing the number of beds, 

preserving personal protective equipment, or taking necessary steps to prepare to 

treat patients with COVID-19.” Notably, Section 3 of the Executive Order extended

partial civil immunity to health care facilities for:

“any injury or death alleged to have been caused by any act or omission 

by the Health Care Facility, which injury or death occurred at a time 

when a Health Care Facility was engaged in the course of rendering 

assistance to the State by providing health care services in response to 

the COVID-19 outbreak, unless it is established that such injury or 

death was caused by gross negligence or willful misconduct of such 

Health Care Facility, if 20 ILCS 3305/15 is applicable, or by willful 

misconduct, if 20 ILCS 3305/21 is applicable.”

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 3 of 19 PageID #:362
4

As referenced in the Executive Order, 20 ILCS 3305/15 grants partial

immunity to certain government actors who render assistance during an emergency, 

while 20 ILCS 3305/21(c) extends immunity to “[a]ny private person, firm or 

corporation,” such as Westchester, that “renders assistance or advice at the request 

of the State” during “an actual or impending disaster” unless the “person, firm or 

corporation” engaged in “willful misconduct.”

Against this backdrop, Plaintiff brings two claims against Westchester under 

the Illinois Nursing Home Care Act—one for negligence, the other for willful and 

wanton misconduct. Westchester moved to dismiss both claims and filed a motion to 

strike several of the allegations in the complaint. The Court turns to those motions 

now.

Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. 

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must 

provide “a short and plain statement of the claim showing that the pleader is entitled 

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of the 

claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This 

standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual 

allegations” are not required, “labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must 

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 4 of 19 PageID #:363
5

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting 

Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded 

facts as true and draws all reasonable inferences in favor of the non-moving party. 

Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Analysis

I. Motion to Dismiss 

A. Count I - Negligence

A plaintiff bringing a claim for negligence must plausibly allege “[1] the existence 

of a duty owed by defendant to the plaintiff, [2] a breach of that duty, and [3] an injury 

proximately caused by that breach.” Parker v. Illinois Masonic Warren Barr Pavilion, 701 

N.E.2d 190, 193 (Ill. App. Ct. 1998) (analyzing negligence claim brought under the Illinois 

Nursing Home Care Act). Broadly speaking, Plaintiff alleges that Westchester: (1) owed

Claybon several duties related to her health and well-being; (2) breached those duties by 

failing to implement infection control and prevention procedures; and (3) caused Claybon 

to contract and later die from COVID-19.

1

 

1 As stated, Plaintiff in this case is Londa Claybon, who serves as independent 

administrator of Carrie Claybon’s estate. However, throughout Plaintiff’s opposition brief, 

counsel repeatedly refers to Carrie Claybon as Lottie Smith and discusses allegations 

involving Ms. Smith that do not appear in Plaintiff’s complaint. See, e.g., R. 23 at 6, 9, 13. 

The Court believes that these references were included in Plaintiff’s brief by mistake since 

counsel has filed a substantially similar case against Westchester involving Ms. Smith. 

See Brady v. SSC Westchester Operating Company LLC, 20-CV-04500, Dkt. 1 (N.D. Ill.

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 5 of 19 PageID #:364
6

In its motion to dismiss, Westchester does not dispute the sufficiency of Count 

I’s allegations. Instead, Westchester argues that it is immune from liability under the 

Executive Order. See R. 14 ¶¶ 11-13; R. 25 at 6-7. As stated earlier, the Executive 

Order relieves health care facilities of liability from injuries or death caused by “any 

act or omission” other than “gross negligence or willful misconduct” that occurred 

while the facility “render[ed] assistance to the State by providing health care services 

in response to the COVID-19 outbreak.” Westchester claims that it rendered

assistance to the State by “attempt[ing]” to “increase the number of beds . . . preserve 

personal protective equipment, and . . . take [the] necessary steps to prepare to treat 

patients with COVID-19.” See R. 14 ¶ 12. 

The problem with this argument is that whether Westchester actually assisted

the State in response to the pandemic is a factual question that cannot be resolved at 

this stage in the proceedings. See Serrano v. Guevara, 315 F. Supp. 3d 1026, 1038 

(N.D. Ill. 2018) (whether defendant was entitled to immunity could not be decided on 

motion to dismiss); Cage v. Harper, 2018 WL 4144624, at *5 (N.D. Ill. Aug. 30, 2018)

(noting that “[i]mmunity defenses typically rely on the facts of the case”); 

Dobrzeniecki v. Salisbury, 2012 WL 1531278, at *6 (N.D. Ill. Apr. 27, 2012) (factual 

dispute over immunity defense precluded Rule 12(b)(6) dismissal). Indeed, all wellpleaded allegations are accepted as true on a motion to dismiss, and Plaintiff alleges 

here that Westchester did not render assistance in response to the pandemic. See R. 

 

July 31, 2020). Plaintiff’s counsel is reminded to review documents for accuracy and 

clarity before filing them with the Court.

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 6 of 19 PageID #:365
7

1 ¶¶ 11-16. Furthermore, Westchester does not argue that it assisted the State; 

rather, it argues that it “attempt[ed]” to assist the State. See R. 14 ¶ 12. This

argument raises more questions than it answers—did the attempt succeed? What was 

the scope of the attempt? When did the attempt occur? Although Westchester filed an 

affidavit in support of its motion, the affidavit is barebones and does not shed any 

light on Westchester’s “attempts” to render assistance. See R. 14-6.

Aside from these factual questions, there is also the potential issue of 

retroactive applicability. Claybon allegedly died on March 30, 2020 while the 

Executive Order was filed and went into effect on April 1, 2020. The Executive Order

grants limited immunity to health care facilities through “the pendency of the 

Gubernatorial Disaster Proclamation,” and purportedly includes in its definition of 

“Gubernatorial Disaster Proclamation” the declaration that went into effect on March 

9. This seems to suggest that the Executive Order applies retroactively, and therefore 

covers events before April 1, but the text of the Executive Order is less than clear and

neither party has briefed the issue.

This is not to say that a court can never grant a motion to dismiss on immunity 

grounds. Granting such a motion may be appropriate when the immunity question 

can easily be resolved from the face of the complaint. See, e.g., Ewell v. Toney, 853 

F.3d 911, 919 (7th Cir. 2017) (affirming Rule 12(b)(6) dismissal because detectives

were entitled to qualified immunity); Remet Corp. v. City of Chicago, 509 F.3d 816, 

819 (7th Cir. 2007) (affirming motion to dismiss because city was entitled to tort 

immunity). But when the key facts of a dispute are tied up in the immunity analysis,

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 7 of 19 PageID #:366
8

as is the case here, “dismissal at the pleading stage” is often “inappropriate.” 

Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001); see also Jacobs v. City of 

Chi., 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J., concurring) (“Rule 12(b)(6) is 

a mismatch for immunity and almost always a bad ground of dismissal.”). Because

the Court cannot determine at this stage and on this record whether the Executive 

Order shields Westchester from liability, and because Westchester does not offer any 

other basis for dismissal, the motion as it relates to Count I is denied.

2

B. Count II - Willful and Wanton Misconduct

That brings us to Count II, which is styled in the complaint as “Illinois Nursing 

Home Care Act – Willful and Wanton.” Plaintiff brings this claim in the alternative 

to Count I since the Executive Order immunizes “negligent” conduct but not “gross 

negligence or willful misconduct.” 

Westchester argues that Count II should be dismissed because the Act does 

not expressly recognize a cause of action for “willful and wanton” misconduct. 

 

2 The introduction section to Westchester’s reply brief asserts, without more, that 

Plaintiff has “declined to file a certificate of merit as required by 735 ILCS 5/2-622.”

See R. 25 at 3. That provision of Illinois law requires a plaintiff bringing a malpractice 

claim to file, among other things, a certificate from a qualified health professional 

stating that “there is a reasonable and meritorious case” supporting the claim. See

735 ILCS 5/2-622. To the extent Westchester believes that Plaintiff’s complaint 

should be dismissed because Plaintiff did not file a certificate of merit, that argument 

is waived since it appeared for the first time in Westchester’s reply brief. See

Hernandez v. Cook Cty. Sheriff’s Off., 634 F.3d 906, 913 (7th Cir. 2011). Even if the 

Court were to consider Westchester’s argument on the merits, it still fails because 

the Illinois Supreme Court has held that plaintiffs “who assert private rights of action 

under the Nursing Home Care Act are not required to” file a certificate of merit. Eads

v. Heritage Enterprises, Inc., 787 N.E.2d 771, 780 (Ill. 2003).

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 8 of 19 PageID #:367
9

Westchester correctly points out that Section 3-601 of the Act holds nursing homes 

liable for “any intentional or negligent” conduct that injures a resident, and does not 

otherwise refer to the words “willful” or “wanton,” See 210 ILCS 45/3-601.

3 But what 

Westchester neglects to mention is that when a word is defined in a statute, it “must 

be construed by applying the statutory definition provided by the legislature.” People 

v. Fiveash, 39 N.E.3d 924, 928 (Ill. 2015). And here, the Act defines “neglect” as “a 

facility’s failure to provide, or willful withholding of, adequate medical care . . . 

personal care, or assistance with activities of daily living that is necessary to avoid 

physical harm.”4 210 ILCS 45/1-117 (emphasis added). At a minimum, then, the plain 

language of the statute contemplates willful misconduct, and finds it actionable under 

certain conditions. What is more, the Illinois Supreme Court has repeatedly 

recognized that common law punitive damages are available for “willful and wanton” 

violations of the Act. See, e.g., Vincent v. Alden-Park Strathmoor, Inc., 948 N.E.2d 

610, 615 (Ill. 2011) (noting that “[i]t has become a settled principle of Illinois law” 

that common law punitive damages are available for “willful and wanton” 

misconduct); Eads, 787 N.E.2d at 777 (similar). There is little reason to think that 

the Illinois Supreme Court would reach this conclusion, and continue to reinforce it, 

 

3 210 ILCS 45/3-601 provides in its entirety: “The owner and licensee are liable to a 

resident for any intentional or negligent act or omission of their agents or employees 

which injures the resident.”

4 The statute does not provide a separate definition for “negligent,” which is the word 

that appears in Section 3-601. But “neglect” is a derivative of “negligent,” so it stands 

to reason that the statute’s definition of “neglect” applies to “negligent.” 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 9 of 19 PageID #:368
10

if “willful and wanton” violations were not recognized under the statute. The Court 

accordingly finds Westchester’s first argument unavailing. 

Westchester argues next that the allegations supporting Count II do not 

sufficiently demonstrate that the nursing home engaged in “willful and wanton”

behavior or “intentional” misconduct. See 210 ILCS 45/3-601 (proscribing “any 

intentional or negligent act or omission” that injures a resident). Although the term 

“intentional” is not defined in the Act, the word generally means “a desire to cause 

consequences or at least [a] substantially certain belief that the consequences will 

result.” Ziarko v. Soo Line R. Co., 641 N.E.2d 402, 405 (Ill. 1994). “Willful and 

wanton” similarly includes intentional conduct, but also encompasses a “reckless 

disregard for the safety of others,” such as failing to take reasonable precautions after

having knowledge of an impending danger. See id.

These definitions resonate here. As stated earlier, Westchester allegedly: (1) 

instructed nursing staff to report to work in March even though they showed 

symptoms of COVID-19 and/or had tested positive for the virus; (2) failed to provide 

staff with PPE, including masks, gowns, and face shields; and (3) ignored COVID-19 

safety protocols. Plaintiff also alleges that Westchester was repeatedly cited by state 

authorities in the years leading up to the pandemic for problems related to infection 

control practices. Although discovery will likely bear out what Westchester knew and 

when, the Court can reasonably infer from the allegations in the complaint that 

Westchester exhibited a reckless disregard for Claybon’s health and well-being, or 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 10 of 19 PageID #:369
11

worse, knew that exposing Claybon to symptomatic nurses would cause her to 

contract the virus. 

Westchester advances a few final arguments, but none are persuasive. 

According to Westchester, Count II should be dismissed because the allegations 

neither describe the symptoms that members of the nursing staff experienced, nor

demonstrate how the decisions made by administrators caused the virus to enter the 

nursing home. Westchester also argues that many of the events giving rise to Count 

II occurred days or weeks before state and federal agencies provided the public with 

recommended safety protocols. 

While it is true that the allegations do not describe specific symptoms, the 

complaint does point out that Westchester knew one member of the nursing staff was 

hospitalized and another tested positive for COVID-19. The complaint also alleges 

that Westchester required the infected employees, along with other symptomatic 

nurses, to report to work during the weeks preceding Claybon’s death and did not 

provide them with PPE. These allegations plausibly demonstrate that Westchester is 

responsible for introducing the virus to its residents. And as it concerns the timeline 

of events, the Center for Medicare & Medicaid Services allegedly issued pandemicrelated guidance designed specifically for nursing homes days before Claybon 

reported her symptoms. The Court can reasonably infer, then, that Westchester 

generally knew in early-to-mid March what steps it could and should take to protect 

its residents. 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 11 of 19 PageID #:370
12

To be sure, the allegations in the complaint might not be enough to prove that

Westchester engaged in “willful” misconduct. Indeed, the initial weeks of the 

pandemic were marked by uncertainty and confusion, and we know far more about 

COVID-19 today than we did in March 2020. But at this stage in the proceedings,

Plaintiff’s allegations are enough to “‘state a claim to relief that is plausible on its 

face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Westchester’s

motion to dismiss Count II is therefore denied.

One final note before the Court turns to Westchester’s motion to strike. 

Plaintiff maintains in her complaint and opposition brief that Governor Pritzker’s 

March 9 proclamation is unconstitutional, as is an executive order issued on May 13, 

2020. See, e.g., R. 1 at 12 n.12; R. 23 at 7. However, Plaintiff does not seem to be 

asking the Court to determine whether the declarations are, in fact, constitutional. 

Indeed, her complaint focuses on Westchester’s alleged misconduct and her 

opposition brief seems to assume that the declarations are constitutional. But to the 

extent Plaintiff is challenging the constitutionality of the March 9 proclamation and 

May 13 order, she should clarify as much at the parties’ next status hearing and 

determine whether she has complied with Federal Rule of Civil Procedure 5.1, which 

places certain requirements on a party challenging a state statute.

II. Motion to Strike 

Rule 12(f) permits a court to strike “any insufficient defense or any redundant, 

immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to 

strike are generally disfavored and usually denied. See Porter v. International 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 12 of 19 PageID #:371
13

Business Machines Corp., 21 F. Supp. 2d 829, 831 (N.D. Ill. 1998). Before the Court 

will strike portions of a complaint, the moving party must demonstrate that “the 

challenged allegations are so unrelated to the present claim as to be void of merit and 

unworthy of consideration.” Kies v. City of Aurora, 149 F. Supp. 2d 421, 427 (N.D. Ill. 

2001). Courts also consider whether the allegations at issue “cause some form of 

significant prejudice to one or more of the parties.” FDIC v. Giannoulias, 918 F. Supp. 

2d 768, 771 (N.D. Ill. 2013) (citation omitted). The decision whether to strike material 

under Rule 12(f) is within the Court’s discretion. Delta Consulting Grp., Inc. v. R. 

Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009).

Westchester moves to strike nearly fifty different allegations in the complaint. 

Although some parts of the complaint are repetitive and irrelevant, the Court declines 

Westchester’s invitation to strike the allegations other than three—paragraphs 19, 

25, and 110. 

Paragraphs 19 and 26 refer to a holding company that supposedly managed 

Westchester and provided professional services to the nursing home. The holding 

company is not mentioned anywhere else in the complaint nor is it listed as a party. 

Furthermore, Plaintiff has not explained why the company is relevant to her claims. 

The Court therefore strikes paragraphs 19 and 26 as immaterial. The Court similarly 

strikes Paragraph 110, which alleges that police officers arrested a Westchester 

employee after she physically assaulted and robbed an elderly resident. The 

allegation has no relevance to Plaintiff’s claims, and the Court questions why the 

allegation was included in the complaint other than to stir emotions. Because 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 13 of 19 PageID #:372
14

Paragraph 110 is immaterial and scandalous, the Court grants Westchester’s motion 

to strike it. 

The Court otherwise denies Westchester’s motion for the following reasons. 

The Introduction Section: Westchester moves to strike the introduction 

section of the complaint, contending that it is argumentative and conclusory. It 

should hardly come as a surprise that the introduction section of a complaint 

attempts to frame a plaintiff’s version of events. The Court therefore declines to strike 

the introduction section here, especially since it is no more than two paragraphs and 

barely takes up an entire page.

Paragraphs 7, 8, 17, 18, 24, 25, and 28 largely describe various state

statutes and Westchester’s obligation to follow those statutes. Westchester argues 

that the paragraphs should be stricken because they are legal conclusions. While 

Plaintiff cannot rely on legal conclusions in pleading her case, she is not barred from 

including such conclusions in her complaint. Walker v. Walker, 2011 WL 3757314, at 

*1 (N.D. Ill. Aug. 25, 2011); see also Spearman Indus. Inc. v. St. Paul Fire & Marine 

Ins. Co., 109 F. Supp. 2d 905, 908 (N.D. Ill. 2000) (declining to strike legal 

conclusions). Furthermore, the paragraphs in question are far from prejudicial. For 

example, paragraph 7 states: “At all relevant times to this Complaint, there was in 

full force and effect, a statute known as the Nursing Home Care Act, as amended 

(“the Act”), 210 ILCS 45/1-101 et seq.” Responding to this paragraph will involve far 

less time and resources than what was required to file this motion. 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 14 of 19 PageID #:373
15

Paragraphs 11, 12, 13, 14, 15, and 16 allege that Westchester was not 

rendering assistance to the State of Illinois in response to the COVID-19 outbreak. 

Westchester claims that these paragraphs are part of an “apparent effort to plead 

around the immunity protection” provided by the Executive Order, and further claims

that whether the Executive Order applies to Westchester is a question of law. But as 

stated earlier, whether Westchester actually rendered assistance to the State in 

response to the pandemic is a question of fact—Paragraphs 11-16 allege that 

Westchester did not render assistance, while Westchester maintains that the nursing 

home “attempt[ed]” to help. The Court therefore declines to strike the paragraphs in 

question.

Paragraph 30 alleges that Westchester was incentivized to maintain the 

highest possible occupancy level at the expense of patient care. Westchester claims 

that its business motivations are irrelevant. There is some merit to this argument. 

But Paragraph 30 alleges that one area of patient care that was minimized in favor 

of additional revenue was the procurement of PPE. Since PPE is widely regarded as 

an essential resource in protecting against COVID-19, and since Plaintiff alleges that 

members of Westchester’s nursing staff were not given PPE in the weeks leading up 

to Claybon’s death, the Court declines to strike Paragraph 30. 

Paragraphs 73 through 88 allege that Westchester was cited by the Illinois 

Department of Public Health between 2011 and 2019 for various regulatory violations 

concerning infection control practices. Westchester claims that the paragraphs 

should be stricken because they are inadmissible hearsay. At this initial stage in the 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 15 of 19 PageID #:374
16

proceedings, the Court does not consider what evidence might be admissible at trial.

Issues related to hearsay and admissibility usually come into the picture starting at 

summary judgment. See Wilbern v. Culver Franchising Sys., Inc., 2015 WL 5722825, 

at *7 (N.D. Ill. Sept. 29, 2015). Westchester also argues that the paragraphs should 

be stricken because they are irrelevant. Plaintiff responds by pointing out that the 

specific violations are related to infection control, and thus bear some connection to 

Claybon’s death. The Court sees merit in both parties’ arguments. On the one hand, 

whether the nursing home was negligent in caring for Claybon does not seem to turn 

on public health citations issued years before she died. On the other hand, and as 

discussed in response to the motion to dismiss, the previous citations specifically 

concern infection control protocols—an issue that is somewhat relevant to Claybon’s 

death. Should the parties move for summary judgment, nothing will prevent them 

from arguing over the relevance of the citations. In the meantime, because the 

citations are not “so unrelated to the [] claim[s] as to be void of merit and unworthy 

of consideration,” City of Aurora, 149 F. Supp. 2d at 427, the Court declines to strike 

Paragraphs 73 through 88. 

Paragraphs 109 and 111 allege that other residents, besides Claybon, died 

at Westchester as result of COVID-19. Westchester contends that the allegations are 

irrelevant. The Court largely agrees—simply because other residents died from 

COVID-19 does not necessarily mean that Westchester was negligent in caring for 

Claybon. But as stated earlier, should this case proceed to summary judgment,

Westchester can argue that the allegations do not support Plaintiff’s claims.

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 16 of 19 PageID #:375
17

Paragraph 133 is over two pages in length and lists more than twenty-five 

different statutory and regulatory provisions concerning nursing home safety. 

Westchester argues that all two pages should be stricken because there are no 

allegations that the nursing home actually violated any of the listed provisions. As a 

preliminary matter, the Court sees little value in Plaintiff’s practice of copying and 

pasting the text from twenty-five different legal provisions into the body of the 

complaint. Some of the legal provisions cited are barely relevant to the case; for 

example, the complaint cites 210 ILCS 45/2-108(a), which purportedly requires a 

nursing home administrator to ensure that “correspondence is conveniently received 

and mailed, and that telephones are reasonably accessible.” This “everything but the 

kitchen sink” approach to complaint drafting is not an efficient way to litigate a case. 

In any event, there are some regulatory provisions listed in Paragraph 133 that are 

supported by allegations in the complaint, such as 77 Ill. Admin. Code, Ch. 1 § 

300.1210, which requires nursing homes to provide “adequate” nursing care “to each 

resident” of the facility. Absent a request from Westchester to strike specific sub-sections 

of Paragraph 133, the Court is not going to investigate each legal provision and determine 

which relate to Plaintiff’s claims and which are supported by factual allegations. 

Paragraphs 134, 135, and 136 allege that Westchester failed to implement 

specific procedures related to infection control and COVID-19. Westchester complains that 

the paragraphs are not supported by factual allegations. Like Paragraph 133, Paragraphs 

134-136 illustrate the “everything but the kitchen sink” approach to complaint drafting; 

nearly fifty different procedures are listed and many (but not all) appear to be either 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 17 of 19 PageID #:376
18

unsupported by factual allegations or largely irrelevant to Plaintiff’s claims. But again, 

the Court is not going to strike several pages from the complaint absent a more specific

request from Westchester. 

Paragraphs 137(d), 137(j), 137(l), 137(m), 137(u), 137(v), and 137(aa) allege 

that Westchester failed to engage in series of acts or omissions related to COVID-19 safety 

protocols. Westchester contends that the paragraphs are either duplicative or irrelevant. 

The Court agrees that several of the paragraphs are duplicative. For example, Paragraphs 

137(j) and 137(u) contain the same or similar allegations as Paragraph 137(i). While Rule 

12(f) allows a court to strike any “redundant” matter, there is no compelling reason to 

strike the sub-paragraphs at issue here since doing so will only create make-work for the 

parties. The Court is “capable of disregarding any extraneous [] allegations.” Santa’s Best 

Craft, LLC v. St. Paul Fire & Marine Ins. Co., 2004 WL 1730332, at *5 (N.D. Ill. July 30, 

2004) (denying motion to strike). Furthermore, the Court disagrees with Westchester’s 

contention that Paragraph 137(d) is irrelevant.Paragraph 137(d) alleges that Westchester 

failed to screen all residents, including Claybon, for COVID-19 symptoms. If true, that 

allegation is relevant to the question of whether Westchester acted negligently in keeping 

Claybon safe from the virus. 

* * * * *

Westchester contends that declining to strike the above-mentioned paragraphs 

may require the nursing home to engage in vast and burdensome discovery. The Court 

recognizes this concern and reminds the parties that Rule 26(b)(1) limits the scope of the 

discovery to matters that are “relevant” to a claim or defense and “proportional” to the 

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 18 of 19 PageID #:377
19

needs of the case. In other words, the “discovery rules are not a ticket to an unlimited, 

never-ending exploration of every conceivable matter that captures an attorney’s interest.”

Motorola Sols., Inc. v. Hytera Commc’ns Corp., 365 F. Supp. 3d 916, 925 (N.D. Ill. 2019); 

see also Emp. Opportunity Comm'n v. Union Pac. R.R. Co., 867 F.3d 843, 852 (7th Cir. 

2017) (discouraging “fishing expeditions”). The parties are strongly encouraged to keep

this in mind as they make their way through the discovery process. Indeed, the mere fact 

that the Court will not strike certain paragraphs in the complaint does not necessarily 

mean that the information contained in those paragraphs are automatically discoverable. 

If Plaintiff’s complaint was more concise, the Court would not feel compelled to make this 

point. Overreaching discovery requests, after a meet and confer to limit them, should be 

brought before the Court in an appropriate motion for a protective order.

Conclusion

For the reasons stated in the opinion, the Court denies Westchester’s motion 

to dismiss, and denies in part and grants in part Westchester’s motion to strike. R. 

14. A status hearing is scheduled for April 5, 2021 at 9:00 A.M. The parties have 

already submitted an agreed-upon fact discovery schedule, which they should be

prepared to discuss at next week’s hearing.

ENTERED:

______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: April 1, 2021

Case: 1:20-cv-04507 Document #: 27 Filed: 04/01/21 Page 19 of 19 PageID #:378