Broadnax et al v. GGNSC Edwardsville III LLC, No. 2:2013cv02640 - Document 28 (D. Kan. 2014)

Court Description: MEMORANDUM AND ORDER granting 8 Motion to Remand and denying plaintiff's request for fees and costs. Signed by U.S. District Senior Judge Sam A. Crow on 3/28/14. (mb)
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Broadnax et al v. GGNSC Edwardsville III LLC Doc. 28 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS MARI E BROADNAX, I ndividually And as Personal Represent at ive of t he Est at e of Mary Craigen, Plaint iff vs. Case No. 13- 2640- SAC GGNSC EDWARDSVI LLE I I I LLC, GARY HOLMES, and JAYME KUBI CKI , Defendant s. MEMORANDUM AND ORDER The plaint iff Marie Broadnax ( “ Broadnax” ) in Novem ber of 2013 filed an act ion in t he Dist rict Court of Wyandot t e Count y, Kansas, bringing claim s for wrongful deat h and a survival act ion. The com plaint nam ed as t he only defendant GGNSC Edwardsville I I I LLC ( “ GGNSC” ) , t he owner and operat or of Golden LivingCent er- Edwardsville ( “ Golden” ) , a m ent al healt h facilit y. The com plaint alleged t hat GGNSC and it s st aff and agent s were negligent in t heir care and t reat m ent of Mary Craigen causing her personal inj uries and cont ribut ing t o t he cause of her deat h. Assert ing t hat all of it s m em bers of t he LLC m eet t he diverse cit izenship requirem ent , GGNSC rem oved t his act ion t o federal court on t he basis of diversit y j urisdict ion and t he com plaint ’s prayer of dam ages in excess of $75,000.00. GGNSC filed it s answer t o t he com plaint in t his court on Decem ber 16, 2013, ( Dk. 5) , and on t he sam e day, filed a m ot ion t o st ay case and com pel arbit rat ion ( Dk. 6) . Dockets.Justia.com Wit hout leave of t he court , t he plaint iff Broadnax filed an am ended com plaint on Decem ber 19, 2013, t hat added t he defendant Gary Holm es, t he adm inist rat or of Golden, and t he defendant Jaym e Kubicki, a nursing supervisor at Golden. ( Dk. 7) . The am ended com plaint alleges t hat bot h of t he individual defendant s are resident s of Kansas. Besides GGNSC’s m ot ion t o st ay, t here is also pending t he plaint iff Broadnax’s m ot ion t o rem and ( Dk. 8) filed aft er her am ended com plaint , and t he j oint defendant s’ m ot ion t o dism iss t he defendant Gary Holm es and Jaym e Kubicki or t o sever claim s against Jaym e Kubicki ( Dk. 20) . The j urisdict ional issues raised in t he m ot ion t o rem and are of first im port ance. M OTI ON TO REM AN D Having added t wo alleged non- diverse individual defendant s t o t he act ion, t he plaint iff sum m arily concludes t hat diversit y j urisdict ion is dest royed and t hat rem and is required. ( Dk. 9) . The defendant s respond wit h an affidavit of Gary Holm es st at ing he is a resident of Missouri but subm it no proof cont rovert ing Ms. Kubicki’s residence in Kansas. The defendant s, however, argue for ignoring t he cit izenship of bot h Holm es and Kubicki and seek t o have t hem dism issed from t he act ion or t he claim s against t hem severed. The defendant s do not challenge t he propriet y of adding t he individual defendant s under Fed. R. Civ. P. 15. They rely on Fed. R. Civ. P 19 and 21 as governing whet her t he individual defendant s should 2 rem ain in t he act ion. GGNSC prem ises t heir argum ent s on now acknowledging vicarious liabilit y for Holm es, Kubicki and any ot her st aff m em ber who m ay have been act ing wit hin t he course and scope of t heir em ploym ent , and GGNSC also offers proof of t he adequat e insurance coverage for any recovery in t his act ion. Highlight ing t he t im ing of t he am ended com plaint and t he plaint iff’s prior knowledge of Holm es’ and Kubicki’s involvem ent in t he relevant event s, t he defendant s accuse t he plaint iff of adding t he individual defendant s j ust t o defeat diversit y j urisdict ion. The defendant s deny t hat Holm es and Kubicki are necessary part ies for “ j ust adj udicat ion.” Alt ernat ively, t he defendant s insist it ’s enough for diversit y j urisdict ion t o have exist ed at t he t im e of rem oval for t he court now t o exercise supplem ent al j urisdict ion over t he new defendant s. 1 I n reply, t he plaint iff point s t o GGNSC’s original answer ( Dk. 5) t hat denied t he com plaint ’s allegat ions of vicarious liabilit y as t he first t im e t he plaint iff knew GGNSC could be denying agency liabilit y for Kubicki’s act ions. The plaint iff argues t he individual defendant s are indispensable part ies, in part , because t he t erm s of t he arbit rat ion agreem ent purport t o require a single arbit rat ion which includes GGNSC’s agent s, em ployees, and servant s. The plaint iff refut es t he addit ion of Kubicki t o be fraudulent j oinder 1 The court im m ediat ely rej ect s t his alt ernat ive argum ent as cont rary t o t he express t erm s of 28 U.S.C. § 1447( e) . The st at ut e does not give t he dist rict court t he opt ion of j oining a non- diverse defendant and ret aining j urisdict ion. Schur v. L.A. Weight Loss Cent ers, I nc., 577 F.3d 752, 759 ( 7t h Cir. 2009) . 3 and rej ect s t he significance t he defendant s at t ach t o t he t im ing of t he am ended com plaint . The am ended com plaint alleges Golden accept ed Mary Craigen as a resident diagnosed wit h unspecified psychosis and depressive disorder t hat significant ly im paired cognit ion and caused psychot ic sym pt om s such as delusions and hallucinat ions. The pat ient allegedly present ed a high risk of falling based on her “ hist ory of falls, im paired gait , ant idepressant and ant ianxiet y m edicat ion use, im proper foot wear,” and overall healt h. ( Dk. 7, ¶ 18) . From January t o July of 2012, t he pat ient fell t hree t im es, and t he st aff docum ent ed no apparent inj uries from t he falls. I n t he m ont h of Sept em ber, she fell t wo m ore t im es, and t he first t im e she sust ained inj uries for which she was t reat ed and evaluat ed at anot her facilit y. Two m ore t im es in Oct ober, she fell. The second t im e she violent ly st ruck her face and head against t he door before falling t o t he floor. The com plaint alleges t hat aft er t his fall Ms. Craigen’s condit ion det eriorat ed, she was not m onit ored correct ly, and her physicians were not inform ed t hat she could no longer walk. While at anot her m edical facilit y being t reat ed for an infect ion, Ms, Craigen was event ually diagnosed wit h “ acut e unst able fract ures C4- 5 and C3- 4” which required surgery. The com plaint alleges t he failure t o m ake t im ely disclosures of t he fall and of t he cont inuing neurological decline delayed t he diagnosis of t he neck fract ure and cont ribut ed t o her irreversible quadriplegia and deat h. 4 Apparent ly relying on t he procedure est ablished by Fed. R. Civ. P. 15( a) ( 1) ( B) , t he plaint iff filed her first am ended com plaint ( Dk. 7) wit hin 21 days aft er t he defendant ’s answer ( Dk. 5) and did not seek t he court ’s perm ission before filing it . This am endm ent , however, sought t o add a nondiverse defendant who would dest roy t his court ’s subj ect m at t er j urisdict ion. This t riggers 28 U.S.C. § 1447( e) , which provides: “ I f aft er rem oval t he plaint iff seeks t o j oin addit ional defendant s whose j oinder would dest roy subj ect m at t er j urisdict ion, t he court m ay deny j oinder, or perm it j oinder and rem and t he act ion t o t he St at e court .” The j oinder of non- diverse defendant s rest s in t he court ’s discret ion aft er “ balanc[ ing] t he equit ies. ” Schur v. L.A. Weight Loss Cent ers, I nc., 577 F.3d 752, 759 ( 7t h Cir. 2009) . That t he plaint iff has already filed t he am ended com plaint wit h a non- diverse part y does not change t he analysis. See Boyce v. Cit iMort gage, I nc., - - - F. Supp. 2d- - - , 2014 WL 241510, at * 5 ( W.D. Tex. Jan. 22, 2014) ; Baum eist er v. Hom e Depot U.S.A., I nc., 2011 WL 650338 at * 2 ( D. Colo. Feb. 11, 2011) ; Reigel v Canyon Sudar Part ners, L.L.C., 2007 WL 3274430 at * 2 ( D. Colo. Nov. 5, 2007) . When a plaint iff j oins a non- diverse part y pursuant t o Rule 15( a) wit hout leave of t he court , t he dist rict court ret ains t he discret ion under § 1447( e) t o review t he post - rem oval j oinder: Reading Rule 15( a) in connect ion wit h Fed. R. Civ. P. 19 and 21, and 28 U.S.C. § 1447( e) , resolves any doubt s over whet her t he dist rict court has aut horit y t o pass upon any at t em pt s—even t hose for which t he plaint iff needs no leave of court —t o j oin a nondiverse defendant . See 28 U.S.C. § 1447( e) ( “ t he court m ay deny j oinder, or perm it j oinder” ) ; see also Fed. R. Civ. P. 19( a) ( “ A person who is subj ect t o 5 service of process and whose j oinder will not deprive t he court of j urisdict ion over t he subj ect m at t er of t he act ion shall be j oined as a part y ...” ) ( em phasis added) ; Fed.R.Civ.P. 21 ( “ Part ies m ay be dropped or added by order of t he court on m ot ion of any part y or of it s own init iat ive at any st age of t he act ion and on such t erm s as are j ust .” ) . Thus, a dist rict court has t he aut horit y t o rej ect a post - rem oval j oinder t hat im plicat es 28 U.S.C. § 1447( e) , even if t he j oinder was wit hout leave of court . See Ascension Ent ers., I nc. v. Allied Signal, I nc., 969 F. Supp. 359, 360 ( M.D.La. 1997) ( holding t hat court has aut horit y under § 1447( e) t o rej ect Rule 15( a) am endm ent t hat , post rem oval and wit hout leave of court , seeks t o add nondiverse defendant ) ; Whit wort h v. TNT Best way Transp. I nc., 914 F. Supp. 1434, 1435 ( E.D. Tex. 1996) ( sam e) ; cf. Pfeiffer v. Hart ford Fire I ns. Co., 929 F.2d 1484, 1488 ( 10t h Cir. 1991) ( rej ect ing assum pt ion t hat “ a part y m ay force rem and of an act ion aft er it s rem oval from st at e court by am ending t he com plaint t o dest roy t he federal court 's j urisdict ion over t he act ion.” ) . That is what happened here. On March 20, 1998—aft er t he case had been rem oved—Mayes filed her am ended com plaint nam ing Key as a defendant . . . . Since no part y raised t he fact t hat Key was not diverse, and since t he dist rict court had no prior opport unit y t o pass upon t he propriet y of Key's j oinder, t he dist rict court properly could have invoked it s aut horit y, under § 1447( e) and relat ed aut horit y, t o det erm ine whet her Key was an appropriat e part y. See Hensgens v. Deere & Co., 833 F.2d 1179, 1182 ( 5t h Cir.1987) ( vacat ing j oinder order because dist rict court perm it t ed post - rem oval j oinder of nondiverse part y “ as a rout ine m at t er,” wit hout act ually exercising discret ion over t he j oinder) . Mayes v. Rapoport , 198 F.3d 457, 462 n.11 ( 4t h Cir. 1999) ; see Mart inez v. Holzknecht , 701 F. Supp. 2d 886, 888 ( S.D. Tex. 2010) ( am endm ent s j oining non- diverse defendant s t hat are ot herwise freely allowed under Fed. R. Civ P. 15( a) ( 2) are subj ect t o t he court ’s discret ion under § 1447( e) ) . Thus, t he court ret ains t he discret ion t o decide now whet her t he plaint iff m ay am end her com plaint t o add t he defendant Kubicki. I f j oinder of t he part y is required by Rule 19, t hen t he court eit her m ust rem and t he case under § 1447( e) or “ deny j oinder, in which 6 case Rule 19( b) also requires t hat t he act ion be dism issed.” McPhail v. Deere & Co., 529 F.3d 947, 951 ( 10t h Cir. 2008) ( foot not e om it t ed) . I f j oinder is not required but perm it t ed by Rule 20( a) ( 2) , t hen t he court has discret ion under § 1447( e) . I d. ( cit ing St at e Dist ribut ors, I nc. v. Glenm ore Dist illeries Co., 738 F. 2d 405, 416- 17 ( 10t h Cir. 1984) ) . “ I n exercising it s discret ion, t he court m ust balance ‘t he danger of parallel federal/ st at e proceedings wit h t he inherent dangers of inconsist ent result s and t he wast e of j udicial resources” against t he diverse defendant ’s ‘int erest in ret aining t he federal forum .’” Mart inez, 701 F. Supp. 2d at 889 ( quot ing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 ( 5t h Cir. 1987) ) . The Tent h Circuit ’s discussion of t he relevant fact ors has included: I n det erm ining whet her t o allow am endm ent of a com plaint , t he court t ypically considers several fact ors. These include whet her t he am endm ent will result in undue prej udice, whet her t he request was unduly and inexplicably delayed, was offered in good fait h, or t hat t he part y had had sufficient opport unit y t o st at e a claim and failed. E.g., Local 472, et c. v. Georgia Power Com pany, 684 F.2d 721 ( 11t h Cir. 1982) . Where t he part y seeking am endm ent knows or should have known of t he fact s upon which t he proposed am endm ent is based but fails t o include t hem in t he original com plaint , t he m ot ion t o am end is subj ect t o denial. See Svoboda v. Trane, 495 F.Supp. 367 ( E.D. Mo. 1979) , aff'd 655 F.2d 898 ( 8t h Cir. 1981) . Also am endm ent s adding part ies m ay involve considerat ion of Fed.R.Civ.P. 20, governing perm issive j oinder. E.g., Mart inez v. Safeway St ores, I nc., 66 F.R.D. 446 ( N.D.Cal. 1975) ( where t he court st at ed t hat it is im plicit in Rule 15 t hat plaint iff m ay am end his com plaint only t o add m at t ers t hat ot herwise would have been proper t o include in t he original com plaint ) . Consequent ly, t his requires a det erm inat ion by t he dist rict court of whet her any right t o relief assert ed by plaint iffs against all defendant s “ in respect of or arising out of t he sam e t ransact ion, occurrence, or series of t ransact ions or occurrences and any operat ion of law or fact com m on t o all will arise in t he act ion.” Fed.R.Civ.P. 20( a) . 7 St at e Dist ribut ors, I nc. v. Glenm ore Dist illeries Co., 738 F. 2d 405, 416 ( 10t h Cir. 1984) ; see Byers v. Life Care Cent ers of Am erica, I nc., 2008 WL 1867976, at * 1 ( D. Kan. Apr. 24, 2008) . The Fift h Circuit em ploys a sim ilar set of fact ors: ( 1) t he ext ent t o which t he purpose of t he am endm ent is t o defeat federal j urisdict ion; ( 2) whet her t he plaint iff has been dilat ory in asking for t he am endm ent ; ( 3) whet her t he plaint iff will be significant ly inj ured if t he am endm ent is not allowed; and ( 4) any ot her fact ors bearing on t he equit ies. Sant illana v. Manhat t an Const ruct ion Com pany, 2013 WL 4854525 at * 1 ( N.D. Tex. Sep. 10, 1013) ( cit ing Priest er v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 ( 5t h Cir.) , cert . denied, 134 S. Ct . 196 ( 2013) , and Hensgens, 833 F. 2d at 1182) ) . The am ended com plaint alleges in count one t hat t he individual defendant s and t he defendant GGNSC breached t he following dut ies: “ t o act in accordance wit h t he st andards of care required of a m ent al healt h nursing facilit y” ( ¶ 38) , “ t o im plem ent and enforce policies and procedures t o ensure proper care for and t reat m ent of resident s” ( ¶ 39) , “ t o have sufficient and qualified st aff” ( ¶ 40) , and “ t o ensure t hat it s nurses and ot her st aff were properly educat ed and t rained wit h regard t o t he care and t reat m ent of resident s” ( ¶ 41) . ( Dk. 7) . Count t wo alleges vicarious liabilit y against t he defendant GGNSC for breach of t he “ dut y t o act in accordance wit h t he st andards of care required of a m ent al healt h nursing facilit y and it s personnel.” I d. at ¶ 47. The am ended com plaint at ¶¶ 15 and 16 allege t hat 8 “ [ a] ll act ions” of GGNSC’s nursing st aff and ot her em ployees “ who were responsible for providing care and t reat m ent t o Mary Craigen . . . were perform ed wit hin t he scope of t heir em ploym ent or agency” m aking GGNSC vicariously liable for t heir act ions. ( Dk. 7) . The defendant GGNSC’s answer st at es t hat it lacks “ sufficient inform at ion” and, t herefore, “ denies t he allegat ions” of ¶¶ 15 and 16. ( Dk. 12) . Wit h regard t o vicarious liabilit y, t he Kansas Suprem e Court has recognized t he following as t he general rules: “ The general rule is t hat t he principal and agent are j oint ly and severally liable for t he t ort ious conduct of t he agent for w hose conduct he is responsible, and t hat , as a result , t hey m ay be j oined in a single suit and a j udgm ent m ay be obt ained against each. I n such a sit uat ion, if t he j udgm ent s on t he m erit s are inconsist ent , i.e., if t here is a j udgm ent for t he agent and against t he principal, t he j udgm ent against t he principal m ust be set aside, unless t here is som e ot her ground for t he principal's liabilit y, as where he is personally negligent . Likewise, where t he t hird part y releases t he agent , t he principal will also be relieved of liabilit y. I f t he principal cont rolled t he prior act ion, he will be bound by any j udgm ent against t he agent . I n any case, t he am ount of com pensat ory dam ages t hat can be awarded against each m ust be t he sam e. However, where t he principal is liable for punit ive dam ages, t he am ount m ay differ from t hat awarded against t he agent .” Sell, Agency § 94, 83–84 ( 1975) . At kinson v. Wichit a Clinic, P.A., 243 Kan. 705, 707- 08, 763 P.2d 1085 ( 1988) . The plaint iff argues t he j oinder of Kubicki is required under Rule 19( a) in t hat t he defendant GGNSC has denied t he allegat ion of vicarious liabilit y and t hat Kubicki is an indispensable part y t o t he defendant s’ j oint m ot ion t o st ay case and com pel arbit rat ion ( Dks. 6 and 23) . The plaint iff believes “ a st rong argum ent exist s t hat her [ Kubicki’s] act s and om issions 9 were reckless and will warrant a request for punit ive dam ages.” ( Dk. 25, p. 4) . The defendant s offer no persuasive response t o t he cont ent ion t hat t his court would not be able t o afford com plet e relief under t he arbit rat ion agreem ent or prot ect Ms. Kubicki’s int erest in com pelling arbit rat ion if she were not j oined as a part y. Such relief and prot ect ion, as well as avoiding t he risk of inconsist ent obligat ions, are afforded by having t he issues concerning t he enforceabilit y of t he arbit rat ion agreem ent decided in a single forum . Even assum ing a different conclusion of t he Rule 19( a) analysis, j oinder rem ains ent irely appropriat e under Rule 20( a) ( 2) as t here is j oint and several liabilit y alleged arising out of t he sam e occurrence wit h m any quest ions of law and fact com m on t o all defendant s. This t riggers considerat ion of t he fact ors relevant t o t he court ’s exercise of discret ion under § 1447( e) . For t he reasons st at ed hereaft er, t he court finds t he balance of equit ies favor allowing t he am ended com plaint and rem anding t his case for lack of subj ect m at t er j urisdict ion. The court is not persuaded t he addit ion of t he defendant Kubicki t o t he suit was prim arily driven by defeat ing federal j urisdict ion, alt hough t his result cert ainly was desirable t o t he plaint iff. The am ended com plaint alleges against Ms. Kubicki a viable claim t hat is cognizable under Kansas law and so rebut s any com pelling inference of an im proper purpose. See Byers v. Life Care Cent ers of Am erica, I nc., 2008 WL 1867976 at * 2 ( D. 10 Kan. 2008) ( defendant nursing hom e had not shown t he plaint iff would be unable t o est ablish a cause of act ion against t he resident nurse who had been in charge of t he decedent ’s care) ; Reigel v. Canyon Sudar Part ners, L.L.C., 2007 WL 3274430 at * 4 ( non- diverse nurses who were responsible for deceased resident ’s care at a nursing care facilit y were properly added) ; cf. Houk v. Travelers Hom e and Marine I ns. Co., 2012 WL 5430979 at * 3 ( D. Colo. 2012) ( Because t he requirem ent s of Rule 20( a) ( 2) were m et , “ t he Court necessarily finds t hat Plaint iffs’ request for j oinder is m ade in good fait h and not solely for t he purpose of dest roying t he Court ’s subj ect m at t er j urisdict ion.” ) . That t he plaint iff filed t he am ended com plaint only days aft er rem oval wit hout any int ervening discovery indicat es t he plaint iff’s prior knowledge of Ms. Kubicki’s involvem ent in t he alleged event s and arguably suggest s a diversit y- defeat ing purpose for adding Ms. Kubicki. Nonet heless, t he plaint iff also explains adding Ms. Kubicki only aft er t he defendant GGNSC filed it s answer denying vicarious liabilit y. Since GGNSC’s not ice of rem oval and answer were filed on t he sam e day, any inference drawn sim ply from t he t im ing of t he filings is indist inguishable. Wit hout knowing what reasons or fact s could be behind GGNSC’s denial of vicarious liabilit y, t he plaint iff’s decision t o add t he individual act ors seem s prudent and reasonable. Addit ionally, t he possibilit y of st at e law sust aining a claim of individual liabilit y against Ms. Kubicki forecloses a fraudulent j oinder argum ent . See Fallas v. Lincare, I nc., 2012 WL 2115176 at * 4, report and recom m endat ion 11 adopt ed by, 2012 WL 2091526 ( D. Colo. 2012) ; Archulet a v. Taos Living Cent er, LLC, 791 F. Supp. 2d 1066, 1079- 1081 ( D. N.M. 2011) . As for t he ot her fact ors, t hey t oo favor adding t he individual defendant and rem anding t he case. The circum st ances support no inference t hat t he plaint iff was dilat ory in adding t he defendant Kubicki. See Mart inez, 701 F. Supp. 2d at 891. Wit hout t he am endm ent , t he plaint iff cert ainly would be prej udiced by t he burden and cost of lit igat ing claim s arising from t he sam e incident in t wo forum s or by foregoing t he claim s against Kubicki and risking an adverse out com e on t he vicarious liabilit y issue. The defendant GGNSC’s int erest in preserving a federal forum fails t o t ip t he balance part icularly when GGNSC is insist ing t hat t he plaint iff’s act ion is subj ect t o an enforceable arbit rat ion agreem ent . The court allows t he am endm ent and rem ands t he act ion. I n her reply brief, t he plaint iff adds a single- sent ence request for at t orneys’ fees and cost s. “ ‘Absent unusual circum st ances, court s m ay award at t orney's fees under § 1447( c) only where t he rem oving part y lacked an obj ect ively reasonable basis for seeking rem oval. Conversely, when an obj ect ively reasonable basis exist s, fees should be denied.’“ Port er Trust v. Rural Wat er Sewer and Solid Wast e Managem ent Dist . No. 1, 607 F.3d 1251, 1253 ( 10t h Cir. 2010) ( quot ing Mart in v. Franklin Capit al Corp., 546 U.S. 132, 141 ( 2005) ) . The plaint iff’s cursory request and briefing of t his issue 12 fails t o est ablish ent it lem ent t o fees and cost s under t his st andard. The plaint iff’s request is denied. I T I S THEREFORE ORDERED t hat t he plaint iff’s m ot ion t o rem and is grant ed but t he plaint iff’s request for fees and cost s is denied; I T I S FURTHER ORDERED t hat t his case is im m ediat ely rem anded t o t he Dist rict Court of Wyandot t e Count y, Kansas. The clerk of t he court is direct ed t o m ail a cert ified copy of t his order t o t he clerk of t he Dist rict Court of Wyandot t e Count y, Kansas, pursuant t o 28 U.S.C. § 1447( c) . Dat ed t his 28t h day of March, 2014, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 13