# United States v. Elderwood Health Care at Linwood

> District Court, W.D. New York · July 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11100324

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 15, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11100324

## How later opinions describe it (automated extraction)

- observing that “requiring some employment relationship acts as a continuing limiting principle” on who can be sued
- noting that the rule “asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEAN NOLAN,

Plaintiff,

v. DECISION AND ORDER
15-CV-99S

POST ACUTE PARTNERS MANAGEMENT, LLC,
1818 COMO PARK BOULEVARD OPERATING CO., LLC,
and ELDERWOOD ADMINISTRATIVE SERVICES, LLC,

Defendants.

I. INTRODUCTION
In this action, Plaintiff Jean Nolan alleges that Defendants illegally retaliated
against her for reporting fraudulent health insurance-related practices that subsequently
gave rise to claims under the federal False Claims Act, 31 U.S.C. §§ 3729 et seq., as
amended (“the FCA”), and the New York False Claims Act, N.Y. Fin. L. §§ 187-194 (“the
NY FCA”). Nolan asserts retaliation claims under 31 U.S.C. § 3730 (h) and N.Y. Fin. L.
§ 191 in a second amended complaint. (Docket No. 66.)
Pending before this Court is Defendants’ motion to dismiss the second amended
complaint.1 (Docket No. 86.) For the reasons set forth below, the motion is granted in
part and denied in part.

1 In support of their motion, Defendants filed a notice of motion, a declaration with exhibit, and a
memorandum of law. (Docket No. 86 and subparts.) Nolan filed a memorandum of law in opposition, a
declaration with exhibits, and a second declaration. (Docket No. 93 and subparts.) In reply, Defendants
filed a memorandum of law and two declarations, each with exhibits. (Docket No. 94 and subparts) This
Court took the motion under advisement without oral argument.
II. BACKGROUND
This Court assumes the truth of the factual allegations contained in the second
amended complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.
Ct. 1848, 48 L. Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v.

Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Defendant Post Acute Partners Management, LLC (“PAPM”), is a privately held
company that owns and operates facilities in several states that provide post-acute
healthcare services, including skilled nursing and inpatient rehabilitation. See Second
Amended Complaint (“SAC”), Docket No. 66, ¶ 12.
Defendant Elderwood Administrative Services, LLC (“EAS”), is a health care
management firm that has provided skilled nursing in New York since 1978. Id. ¶ 13. It
owns and operates 17 rehabilitation, skilled nursing, assisted living, and independent
living communities in Western New York, including a facility located at 1818 Como Park
Boulevard in Lancaster, N.Y. Id. PAPM acquired EAS in 2013. Id. ¶ 13.

Defendant 1818 Como Park Boulevard Operating Co., LLC (“1818 Como Park”),
appears to operate EAS’s facility located at 1818 Como Park Boulevard in Lancaster,
which this Court will refer to as Elderwood Lancaster. Id. ¶¶ 4, 14.
Nolan is an experienced licensed practical nurse. Id. ¶ 38. Over the course of her
long career, she worked in multiple facilities and acquired knowledge of state and federal
regulations that govern the skilled-nursing and long-term-care industries. Id.
In April 2013, Nolan began working the night shift at Elderwood Lancaster on a per
diem basis. Id. Two weeks later, she transitioned to working there full-time. Id.
Throughout the course of her employment, Nolan personally observed numerous unlawful
and fraudulent practices intended to maximize payments from federally and state funded
health insurance programs—Medicare, Medicaid, and TRICARE. See, e.g., id. ¶¶ 4-9,
8A2, 39. These practices are detailed in the second amended complaint, but are not at
issue on this motion. Id. ¶¶ 42-61 (detailing fraudulent practices involving patient

admissions in rehabilitation programs), 62-88 (detailing fraudulent practices involving
manipulation of requirements to treat patients for whom services were not medically
reasonable or necessary), 89-95 (detailing fraudulent billing of skilled nursing services to
inflate billings). Nolan refused to engage in these practices and complained about them
to her supervisors and to the corporate office, beginning in October 2013. Id. ¶¶ 9A, 10,
40, 96-116.
What followed, according to Nolan, was a course of illegal retaliation. Id. ¶¶ 10,
96-116. Nolan was first treated with hostility and threatened. Id. ¶¶ 10, 98. Then, when
Nolan continued to speak out against the illegal practices, Defendants changed her
position, so that she could no longer observe and report the offending conduct. Id. ¶ 10.

And when Nolan reported the conduct to upper management, her supervisors created a
pretext for her termination and ultimately terminated her employment at the end of April
2014.3 Id. ¶¶ 10, 115. Nolan maintains that the retaliation and termination violate the
anti-retaliation provisions in the federal and state False Claims Acts, specifically, 31
U.S.C. § 3730 (h) and N.Y. Fin. L. § 191. Id. ¶¶ 117-124. These two claims are the only
ones remaining in this matter.

2 Two paragraphs in the second amended complaint are misnumbered. At the top of page 5, paragraph
numbers 8 and 9 are mistakenly repeated. For the sake of clarity, this Court will refer to those two
paragraphs as 8A and 9A.

3 Nolan’s termination date is unclear in the second amended complaint. In paragraph 10, she alleges that
she was terminated on April 29, 2014. SAC, ¶ 10. In paragraph 115, she alleges that she was terminated
four days earlier, on April 25, 2014. Id. ¶ 115.
Defendants’ motion implicates the relation-back doctrine, specifically whether
Nolan’s second amended complaint relates back to her original complaint, which did not
name any of the present defendants. See Fed. R. Civ. P. 15 (c). Examination of the past
named parties is therefore required.

Nolan originally commenced this action as a qui tam suit more than a decade ago,
on behalf of herself, the United States, and the State of New York. She filed the initial
complaint on February 3, 2015, and named as defendants Elderwood Health Care at
Linwood; Elderwood Senior Care, Inc.; Post Acute Partners; and Does 1-100. (Docket
No. 1.) Nolan thereafter filed a first amended complaint on October 7, 2016, which
dropped Elderwood Health Care at Linwood as a defendant, but kept in Post Acute
Partners, Elderwood Senior Care, Inc., and Does 1-100. (Docket No. 16.)
On July 29, 2022, the United States and the State of New York filed a Notice of
Intervention in part and Declination in part for purposes of effectuating partial settlement.
(Docket No. 59.) But the partial settlement, and the subsequent joint stipulation of

dismissal (Docket No. 62), did not involve any of the entities named in the first amendment
complaint, which was the operative pleading at the time. Instead, they named and
involved entities that had not yet been sued in this action, including 1818 Como Park
Boulevard Operating Co., LLC, and Elderwood Administrative Services, LLC, both of
whom Nolan later named in the second amended complaint.
Following the partial settlement, on December 22, 2022, Plaintiff and Post Acute
Partners stipulated to limited amendment of the first amended complaint to include only
the removal of claims brought on behalf of the United States or the State of New York
and the addition of details concerning Nolan’s retaliation allegations. (Docket Nos. 63,
64.)
On January 18, 2023, Plaintiff filed the second amended complaint now at issue.
Again, it names as defendants Post-Acute Partners Management, LLC; 1818 Como Park

Boulevard Operating Co., LLC; and Elderwood Administrative Services, LLC. It remains
the operative pleading after this Court denied Post Acute Partners’ motion to strike and
granted leave to amend. (Docket No. 75.)
In each of the three complaints, Nolan endeavored to name the nursing facility at
which she worked (her employer), the owner-operator of that facility, and the owner of
that owner-operator. She identified the nursing facility at which she worked as Elderwood
Health Care at Linwood in the initial complaint, see Complaint, Docket No. 1, ¶¶ 2, 11; as
Elderwood at Lancaster in the first amended complaint, see First Amended Complaint
(“FAC”), Docket No. 16, ¶ 3; and as 1818 Como Park Boulevard Operating Co., LLC, in
the second amended complaint, see SAC, ¶¶ 4, 14. She identified the owner-operator of

the facility as Elderwood Senior Care, Inc., in the initial and first amended complaints, see
Complaint, ¶ 12; FAC, ¶ 12; and as Elderwood Administrative Services, LLC, in the
second amended complaint, see SAC, ¶ 13. She identified the owner of the owner-
operator as Post Acute Partners in the initial and first amended complaints, see
Complaint, ¶ 13; FAC, ¶ 11; and as Post Acute Partners Management, LLC, in the second
amended complaint, see SAC, ¶ 12.
III. DISCUSSION
Nolan maintains that Defendants retaliated against her in violation of federal and
state law. Defendants move to dismiss Nolan’s claims under Rule 12 of the Federal Rules
of Civil Procedure as barred by the statute of limitations, for failure to state a claim upon
which relief can be granted, and for improper service. Nolan opposes the motion on all
fronts.
A. Rule 12 (b)(6) Standard

Rule 12 (b)(6) provides for dismissal of a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12 (b)(6). In addition, if it appears from the
face of the complaint that a cause of action has not been brought within the applicable
statute of limitations period, the defense of limitations “may be raised in a pre-answer
motion pursuant to Fed. R. Civ. P. 12 (b)(6).” Santos v. Dist. Council of N.Y.C., 619 F.2d
963, 967 n.4 (2d Cir. 1980); see also Ghartley v. St. John’s Queens Hosp., 869 F.2d 160,
162 (2d Cir. 1989).
Federal pleading standards are generally not stringent: Rule 8 requires only a short
and plain statement of a claim. Fed. R. Civ. P. 8 (a)(2). But the plain statement must
Apossess enough heft to show that the pleader is entitled to relief.@ Bell Atl. Corp. v.

Twombly, 550 U.S. 554, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Although Rule
8 “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,
the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678-
79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555).
“Labels and conclusions” or “a formulaic recitation of the elements of a cause of action”
also will not do. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678 (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
ATo survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, 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); id. at 679 (“[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.”). Facial plausibility exists when

the facts alleged allow for a reasonable inference that the defendant is liable for the
misconduct charged. Iqbal, 556 U.S. at 678. Plausibility requires finding “more than a
sheer possibility that a defendant has acted unlawfully,” id., but it is not a probability
requirement, Twombly, 550 U.S. at 570. The well-pleaded allegations in the complaint
need only nudge the claim Aacross the line from conceivable to plausible.@ Id.
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff=s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007). Legal conclusions, however, are not afforded the same presumption of
truthfulness. See Iqbal, 556 U.S. at 678 (Athe tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions@). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 662; id. at 686 (“[T]he Federal Rules do not require courts to credit a
complaint’s conclusory statements without reference to its factual context.”).
A two-pronged approach is thus used to examine the sufficiency of a complaint.
This examination is context specific and requires the court to draw on its judicial
experience and common sense. See Iqbal, 556 U.S. at 679. First, statements that are
not entitled to the presumption of truth, such as conclusory allegations, labels, and
factually unsupported legal conclusions, are identified and stripped away. See id.
Second, well-pleaded, non-conclusory factual allegations are presumed true and
examined to determine whether they Aplausibly give rise to an entitlement to relief.@ Id.
AWhere the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,@ the complaint fails to state a claim. Id.

In considering a motion to dismiss under Rule 12 (b)(6), “a district court must
confine its consideration to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99,
107 (2d Cir. 1999) (quotation marks omitted); see also Blue Tree Hotels Inv. (Can.), Ltd.
v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). “[W]here
a document is not incorporated by reference, the court may nevertheless consider it
where the complaint relies heavily upon its terms and effect,” thereby rendering the
document “integral to the complaint.” Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d
Cir. 2006) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)).

But even where a document is “integral” to the complaint, it cannot serve as the basis for
dismissal unless there is no dispute as to its authenticity, accuracy, and relevance. See
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (internal citations omitted).
B. Defendants’ Motion to Dismiss
1. The second amended complaint is not subject to dismissal on statute of
limitations grounds because the amendments relate back to the original
complaint.

Defendants argue that Nolan’s second amended complaint must be dismissed on
statute of limitations grounds. “Because statute of limitations is an affirmative defense,
defendants ‘moving to dismiss a cause of action as time-barred bear[ ] the initial burden
of establishing that the time to sue has expired.’” TADCO Const. Corp. v. Dormitory Auth.
of State of N.Y., 700 F. Supp. 2d 253, 273 (E.D.N.Y. 2010) (quoting Town of Hempstead
v. Lizza Indus., Inc., 741 N.Y.S.2d 431, 432 (N.Y. App. Div. 2002)). Dismissal on statute
of limitations grounds may be granted only when it is clear from the complaint that the

claim is untimely. See Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (“[I]n
the statute of limitations context . . . dismissal is appropriate only if a complaint clearly
shows the claim is out of time.”); Omollo v. Citibank, N.A., No. 07 Civ. 9259 (SAS), 2008
WL 1966721, at *3 (S.D.N.Y. May 6, 2008) (same).
There is no dispute that Nolan filed her second amended complaint outside of the
3-year statute of limitations period. See 31 U.S.C. § 3730 (h)(3); McKenna v. Senior Life
Mgmt., 429 F. Supp. 2d 695, 700 (S.D.N.Y. 2006). The question is whether Nolan’s
amendments relate back to her original complaint, such that they are deemed timely
under the federal rules.
“If a complaint is amended to include an additional defendant after the statute of

limitations has run, the amended complaint is not time barred if it ‘relates back’ to a timely
filed complaint.” VKK Corp. v. NFL, 244 F.3d 114, 128 (2d Cir. 2001) (citing Fed. R. Civ.
P. 15 (c)). Rule 15 (c) of the Federal Rules of Civil Procedure governs the relation back
of amendments to a pleading. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
The rule provides in relevant part as follows:
An amendment to a pleading relates back to the date of the
original pleading when:

. . .

(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought
in by amendment:

(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and

(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity.

Fed. R. Civ. P. 15 (c)(1).

“The rationale of Rule 15 (c) is that a party who has been notified of litigation
concerning a particular occurrence has been given all the notice that statutes of limitations
were intended to provide.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 159 n.
3, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984). The relevant inquiry is thus “whether
adequate notice of the matters raised in the amended pleading has been given to the
opposing party within the statute of limitations by the general fact situation alleged in the
original pleading.” Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006).
At issue is the portion of the rule that relates to changes in parties or party names.
See Fed. R. Civ. P. 15 (c)(1)(C). At the outset, this Court notes that the requirement that
Rule 15 (c)(1)(B) be satisfied is met here: there is no dispute that the amendments at
issue arise out of the conduct, transaction, and occurrence set out in the original
complaint. See Fed. R. Civ. P. 15 (c)(1)(B). Aside from the identification of new
defendants, the second amended complaint simply adds detail to the previously pleaded
retaliation allegations.
What Defendants take issue with are the remaining requirements of Rule 15
(c)(1)(C) pertaining to mistake and notice. Defendants first argue that the second
amended complaint does not relate back to save Nolan’s claims against 1818 Como Park
because Nolan did not misname this defendant in her original complaint. See Fed. R.

Civ. P. 15 (c)(1)(C)(ii). Rather, she purposefully elected not to name 1818 Como Park as
a matter of strategy, because she was litigating an employment-discrimination action
against it in another forum. In that case, Nolan lodged a post-termination discrimination
charge against “Elderwood of Lancaster”4 with the New York State Division of Human
Rights. That filing occurred nine months before Nolan commenced the instant action, in
which she identified her place of employment not as “Elderwood of Lancaster,” but as
“Elderwood Health Care at Linwood.” See Declaration of Michele R. Di Franco, Docket
No. 86-1, Exhibit A; Complaint, ¶¶ 2, 11. Defendants thus contend that Nolan has always
known the true identity of her employer and did not misname it for purposes of the relation-
back doctrine.

Nolan maintains that Defendants’ complicated corporate structure caused her to
initially misidentify Elderwood Health Care at Linwood as her employer, and therefore the
relation-back doctrine should apply. Nolan was hired by Elderwood Health Care at
Linwood, but a subsequent acquisition by PAPM caused a name change to Elderwood at
Lancaster, the entity Nolan named in her first amended complaint. See Declaration of
Jean Nolan, Docket No. 93-6, ¶¶ 2-5. Nolan argues that she has always attempted in
good faith to identify and name her employer and those entities responsible for retaliating

4 Elderwood of Lancaster is the d/b/a of 1818 Como Park. See Memorandum of Law, Docket No. 86-3, p.
11 n. 2.
against her, with the named parties consistently being either predecessors or affiliates of
one another.
Having considered the parties’ arguments, this Court finds an insufficient basis to
conclude that Nolan intentionally omitted her employer from her original complaint.

Rather, she mistakenly named the predecessor entity. Defendants’ speculation that
Nolan strategically omitted her proper employer is belied by the pleading record. In each
iteration of the complaint, Nolan evidenced an intention to name the corporate entity
whom she believed employed her at the facility located at 1818 Como Park Boulevard.
Without the benefit of discovery, she named Elderwood Health Care at Linwood, then
Elderwood at Lancaster, and now 1818 Como Park. Defendants do not deny that these
are entities associated with past or current corporate ownership. Although Defendants
rely heavily on Nolan having named “Elderwood of Lancaster” in her administrative
charge to impute actual knowledge, there is no basis for such imputation. An equal
inference is that Nolan believed “Elderwood of Lancaster” was mistaken when she instead

named “Elderwood Health Care at Linwood” in her original complaint. In the end, this
Court is satisfied that Nolan at all times endeavored to sue her employers for retaliating
against her, and did not intentionally name a wrong entity in her original complaint.5
Defendants next argue that none of them had timely notice or any indication that
Nolan would bring retaliation claims against them. See Fed. R. Civ. P. 15 (c)(1)(C)(ii).
But it is undisputed that Defendants and the past corporate defendants are related entities
that all share the same counsel. And it must have been known to them through Nolan’s

5 This conclusion also explains Nolan’s stipulation to filing a second amended complaint against Post Acute
Partners, LLC, an entity she believed was responsible for retaliation under 31 U.S.C. § 3730 (h). See
Docket No. 63.
past pleading that she consistently endeavored to bring retaliation claims against the
facility at which she worked (her employer), the owner-operator of that facility, and the
owner of that owner-operator. That much was plain and consistent from the original
complaint and first amended complaint. While Nolan misidentified and misnamed the

various corporate entities, the real parties in interest were known or should have been
known to counsel and the relevant corporate structure, including during the 90-day
service period from July 29 to October 27, 2022 (90 days after unsealing of the qui tam
action). See Fed. R. Civ. P. 15 (c)(1)(C)(ii); Krupski v. Costa Crociere S.p.A., 560 U.S.
538, 548, 130 S. Ct. 2485, 2493 (2010) (noting that the rule “asks what the prospective
defendant knew or should have known during the Rule 4(m) period, not what the plaintiff
knew or should have known at the time of filing her original complaint”) (emphasis in
original). Defendants’ lack-of-notice arguments are thus unpersuasive.
“The purpose of Rule 15 is to provide maximum opportunity for each claim to be
decided on its merits rather than on procedural technicalities.” Slayton, 460 F.3d at 228;

see also Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir.
1997) (noting that the principle purpose of the relation-back doctrine is “to prevent parties
against whom claims are made from taking unjust advantage of otherwise
inconsequential pleading errors to sustain a limitations defense”). The amendments here
arise out of the conduct, transaction, and occurrence set out in the original complaint.
Moreover, Defendants had fair notice of the action and of Nolan misnaming the proper
parties, and they have identified no unfair prejudice in permitting the amendment. The
relation-back doctrine therefore applies, and Defendants’ motion to dismiss on statute of
limitations grounds must be denied. See Fed. R. Civ. P. 15 (c)(1).
2. Nolan sufficiently states claim against EAS, but not PAPM.
Defendants alternatively argue that the second amended complaint must be
dismissed as against EAS and PAPM because Nolan fails to state claims against them.
In particular, they argue that the federal and New York False Claims Acts permit claims

against only employing entities, and, in any event, Nolan fails to plausibly state her claims.
Nolan maintains that EAS and PAPM may be subject to liability and that her claims are
properly pleaded.
The federal False Claims Act provides as follows:
Any employee, contractor, or agent shall be entitled to all relief
necessary to make that employee, contractor, or agent whole,
if that employee, contractor, or agent is discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance of an
action under this section or other efforts to stop 1 or more
violations of this subchapter.

31 U.S.C. § 3730 (h)(1). The New York False Claims Act provides similarly. See N.Y.
Fin. L. § 191.
To state a retaliation claim, a relator must allege that “(1) he engaged in activity
protected under the statute, (2) the employer was aware of such activity, and (3) the
employer took adverse action against him because he engaged in the protected activity.”
United States ex rel. Chorches v. Am. Med. Response, Inc., 865 F.3d 71, 95 (2d Cir.
2017). Liability lies against employers, but not against individuals in either a personal or
official capacity. See United States ex rel. Rubar v. Hayner Hoyt Corp., 306 F. Supp. 3d
478, 484 (N.D.N.Y. 2018).
Liability may also lie against parent corporations or other corporate relations, if
there exists a high level of control and commonality of ownership. Id. at 484-85. That is,
an “employer-type” relationship must exist. United States ex rel. Bias v. Tangipahoa
Parish Sch. Bd., 816 F.3d 315, 324 (5th Cir. 2016) (observing that “requiring some

employment relationship acts as a continuing limiting principle” on who can be sued). In
Shi v. Moog, for example, the plaintiff was an employee of Moog Shanghai but also
alleged that he was employed by Moog, a related entity, and he reported to Moog
headquarters. See Shi v. Moog Inc., 19-CV-339V, 2019 WL 4543129, at *6 (W.D.N.Y.
Sept. 19, 2019), report and recommendation adopted, No. 19-CV-339V, 2020 WL
5668979 (W.D.N.Y. Sept. 24, 2020). The court permitted the claim against Moog to stand
on the basis that “Moog Shanghai is a subsidiary of Moog, and discovery plausibly could
confirm a day-to-day working relationship with Moog that would suffice to make plaintiff
an employee or agent of Moog for purposes of Section 3730 (h)(1).” Id.
Here, Nolan seeks to avoid dismissal of PAPM and EAS on the theory that they

are corporate affiliates of 1818 Como Park and participated in the alleged retaliation.
Nolan alleges that she reported the unlawful practices she observed “to her immediate
supervisor at Lancaster and to Elderwood’s corporate office.” SAC, ¶ 97. She further
alleges other contact with the “corporate office” and “corporate representatives,” separate
from 1818 Como Park. SAC, ¶¶ 106, 107, 111, 113, 114. And she alleges that she
reported the retaliation she suffered to the corporate office, which did not intervene.6
SAC, ¶¶ 106, 107, 111, 113, 114, 118-120, 123, 124.

6 Although Nolan does not specifically allege that corporate representatives failed to intervene, such a
conclusion is a reasonable inference from the stated allegations.
Given the allegation that EAS owns and operates 1818 Como Park and Elderwood
Lancaster, see SAC, ¶ 13, it is a reasonable inference that EAS is the “corporate office”
alleged in the complaint. The allegations are thus sufficient to allow Nolan’s claims to
proceed against EAS, and discovery will determine whether Nolan can ultimately

demonstrate a sufficient day-to-day working relationship between EAS and 1818 Como
Park, such that EAS could be considered Nolan’s employer. The allegations in the
second amended complaint are also sufficient to state retaliation claims against EAS for
purposes of Rule 12 (b)(6). See Chorches 865 F.3d at 95.
But Nolan’s allegations are insufficient as to PAPM, which is alleged to be one-
step removed from 1818 Como Park, as simply the owner of EAS, without any plausible
employer-related connection to Nolan or day-to-day working relationship with 1818 Como
Park. See SAC, ¶ 12. The claims against PAPM must therefore be dismissed.
Consequently, Defendants’ motion to dismiss Nolan’s claims will be granted as to
PAPM, but denied as to EAS.

3. Dismissal of the second amended complaint on service grounds is not
warranted.

Defendants next argue that the second amended complaint should be dismissed
because Nolan failed to effectuate timely service. Under Rule 4 (m) of the Federal Rules
of Civil Procedure, a plaintiff has 90 days from filing to serve a defendant with a summons
and complaint. See Fed. R. Civ. P. 4 (m). The 90-day rule also applies to service of an
amended complaint on a new party. See Albany Patroons, Inc. v. Demperio Sports &
Ent., LLC, 1:21-CV-0286 (GTS/DJS), 2022 WL 4235433, at *1 n. 1 (N.D.N.Y. Sept. 14,
2022); 4B Wright & Miller, Fed. Pract. & Proc. (Civil) § 1137 (4th ed. 2019) (“[A]dding a
new party through an amended complaint initiates a new timetable for service upon the
added defendant.”).
Nolan filed the second amended complaint on January 18, 2023, which Post Acute
Partners moved to strike on February 17, 2023. (Docket Nos. 66, 67.) Nolan then cross-

moved to amend on March 10, 2023. (Docket No. 68.) On May 23, 2023, this Court
denied the motion to strike and granted the motion to amend. (Docket No. 75.) Nolan
served each of the defendants with the second amended complaint on June 23, 2023.
(Docket Nos. 80-82.)
Defendants argue that Nolan had until April 17, 2023, to serve them, which was 90
days after she filed her complaint, thereby making service on June 23, 2023, untimely.
Nolan argues that the 90-day period for service did not begin until May 23, 2023, when
this Court granted leave to amend, making service 30 days later timely.
Rule 4 (m) permits a court to extend the time for service for an appropriate period
when a plaintiff shows good cause for failing to effectuate timely service. See Fed. R.

Civ. P. 4 (m); Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012) (citing Zapata v. City of
New York, 502 F.3d 192, 196 (2d Cir. 2007)). Here, even assuming that Nolan’s time to
serve the second amended complaint began to run upon filing (and not upon the granting
of the motion to amend), this Court finds that Nolan demonstrates good cause for failing
to timely effectuate service, that being the litigation over whether the second amended
complaint was properly filed and acted as the operative pleading. Defendants
demonstrate no prejudice from the arguably late service, and this Court finds none. The
request to dismiss the second amended complaint on untimely service grounds will
therefore be denied. The second amended complaint is deemed timely served under
Rule 4 (m).
IV. CONCLUSION
For the reasons stated above, this Court finds that Defendants’ motion to dismiss

must be granted in part and denied in part. Nolan’s retaliation claims survive as to 1818
Como Park and EAS, but will be dismissed as to PAPM. The remaining defendants will
be directed to answer the complaint as set forth below.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ motion to dismiss (Docket No. 86) is
GRANTED in part and DENIED in part, consistent with the foregoing decision.
FURTHER, that Plaintiff’s claims against Defendant Post Acute Partners
Management, LLC, are DISMISSED for the reasons set forth herein.
FURTHER, that the remaining defendants must answer the complaint within 14
days of the entry date of this decision.

SO ORDERED.

Dated: July 15, 2025
Buffalo, New York

s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11100324. Public record. Not legal advice.