Addiction & Mental Health Services Inc v. Ashcraft
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 06/03/2013. (CVA)
2013 Jun-03 PM 02:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
IN THE MATTER OF:
WILLIAM ARTHUR ASHCRAFT,
CIVIL ACTION NO.
Dr. William Arthur Ashcraft (“Dr. Ashcraft”) removed the
above-entitled matter to this court from the Circuit Court of
Addiction & Mental Health Services, Inc., d/b/a Bradford Health
Services (“Bradford”) filed a timely motion for remand, (Doc. 4),
asserting that the removal was procedurally defective and that,
even if procedurally correct, this court lacks subject-matter
At the court’s invitation, the Board of Dental
improvidently removed, the court will grant Bradford’s motion for
In March 2012, the Board received notice from another state
Ashcraft, a dental licensee.
Dr. Michael Garver (“Dr. Garver”),
the director of the Alabama Dental Wellness Committee (“ADWC”), the
said other state regulatory agency, contacted Dr. Ashcraft to
discuss the allegations in the notice.
Dr. Ashcraft consented to
a professional evaluation. Bradford is one of three board-approved
treatment facilities for impaired professionals. After his initial
evaluation, and for the duration of the treatment period, Dr.
Ashcraft authorized Bradford to release information to Dr. Garver
regarding his ongoing treatment, diagnosis, and recommendations for
aftercare and sobriety maintenance.
This release was in effect
from its execution on April 9, 2012 until March 27, 2013, when Dr.
Ashcraft revoked the authorization.
Prior to this revocation, Dr.
Garver, as director of the ADPW, maintained contact with the
medical professionals at Bradford, who provided Dr. Garver with
copies of Dr. Ashcraft’s written diagnosis and treatment reports.
These documents included a narrative of his medical history, an
overview of his impairment, and recommendations for aftercare.
The Board is charged with protecting the health, safety, and
welfare of the public by regulating the practice of dentistry in
See ALA. CODE § 34-9-2(a) (1975).
The Dental Practices
Act sets forth grounds for disciplinary action, one of which is
licensee] unfit for the practice of dentistry or dental hygiene.”
Id. at § 34-9-18(4).
After Dr. Ashcraft underwent an evaluation
and impatient treatment at Bradford, the Board, through Dr. Garver
and the Board’s prosecuting counsel, offered Dr. Ashcraft the
opportunity to enter into a consent order and monitoring contract
with the Board wherein Dr. Ashcraft could execute an agreement
maintenance. Similar to consent orders executed by other licensees
who have undergone treatment for impairment, the terms of the
counseling, attendance at meetings, random urine screens, regular
communication with the ADPW, and other activities and treatment
recommended by Bradford.
Dr. Ashcraft refused the offered consent order, whereupon the
Board set the matter for hearing on April 5, 2013.
On March 19,
2013, the Board issued a subpoena to Donald R. Cornelius, M.D.
(“Dr. Cornelius”) of Bradford.
Shortly thereafter, on March 26,
2013, Dr. Ashcraft requested the Administrative Law Judge to issue
Bradford subpoenas seeking the testimony of nine named Bradford
employees, including Dr. Cornelius, and its Custodian of Records,
as well as the production of documents. The subpoenas were issued.
The subpoenas directed Bradford to produce testimony and treatment
The next day, Dr. Ashcraft rescinded all
executed authorizations for release of information regarding his
evaluation and treatment at Bradford.
The hearing scheduled for
April 5, 2013, was not held.
On April 2, 2013, Bradford instituted the underlying state
court proceeding by filing a motion in the Circuit Court of
Jefferson County, Alabama to quash the subpoena directed to it. In
its motion, Bradford asserts that the testimony and documents
sought are privileged based on federal and state law, including
federal regulations providing that alcohol and chemical dependency
treatment programs are prohibited from disclosing patient records
or other patient information without the patient’s consent or court
See 42 U.S.C. §290dd-2; 42 C.F.R.
Part 2 (1991); 42 C.F.R. §§ 2.63 and 2.64 (1991).
Bradford argued that it would be unduly burdensome to require ten
employees to appear at the hearing when two of the doctors would be
sufficient to authenticate the records and provide any necessary
testimony related to the alleged patient’s treatment.
The Circuit Court of Jefferson County set the motion to quash
for hearing on April 4, 2013, at 3:00 P.M.
On the day of the
hearing, Dr. Ashcraft filed his notice of removal pursuant to 28
U.S.C. §§ 1331, 1441, 1446, removing the state court proceeding to
The Board was not notified of Dr. Ashcraft’s motion
and did not join in the notice of removal.
“When a civil action is removed solely under section 1441(a),
all defendants who have been properly joined and served must join
in or consent to the removal of the action.”
28 U.S.C. § 1446
This requires that “all defendants must consent to the
removal of a case to federal court.”
Assur. Co., 264
Russell Corp. v. Amer. Home
requirement must be strictly interpreted and enforced because of
the significant federalism concerns arising in the context of
federal removal jurisdiction.” Id. at 1049 (citing Univ. Of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)).
The notice of removal filed by Dr. Ashcraft does not contain
the required statement that the Board either joined the removal or
consented to the removal from the state court.
did not consent to the removal.
In fact, the Board
Dr. Ashcraft argues that this
defect does not warrant remand because the Board is not a true
The “normal party exception” provides that
indispensable, are not required to join the petition for removal.”
Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressman &
Assistants’ Local 349, 427 F.2d 325, 327 (5th Cir. 1970).1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc), the Eleventh Circuit adopted as binding
precedent all decisions rendered by the Fifth Circuit prior to
“nominal party” is “a party to an action who has no control over it
and no financial interest in its outcome” or “a party who has some
immaterial interest in the subject matter of a lawsuit and who will
not be affected by any judgment but who is nonetheless joined in
the lawsuit to avoid procedural defects.”
BLACK’S LAW DICTIONARY (9th
Despite Dr. Ashcraft’s urging to the contrary, the Board has
The Board itself requested the issuance of a subpoena
to one of the doctors at Bradford to appear at the hearing.
investigate and determine whether dental licensees are impaired and
whether they can safely practice dentistry.
That is exactly what
the Board is attempting to do in this matter.
It is Dr. Ashcraft
who has obstructed the Board’s ability to carry out its objective
necessitating Bradford’s motion to quash.
than a nominal party.
The Board is much more
It is an indispensable party, and was
required to join in or consent to the removal of this matter under
20 U.S.C. § 1446(b)(2)(A).
Bradford’s motion to remand will be
Even if Dr. Ashcraft had acquired the Board’s consent to its
removal, remand would still be required because the removed matter
October 1, 1981.
does not constitute a “civil action.”
The burden is on the
removing party, here Dr. Ashcraft, to establish that the federal
court has jurisdiction.
Ala. Power Co. v. Calhoun Power Co., LLC,
No. 12-cv03798, 2012 WL 6755061, at *2 (N.D. Ala. Dec. 28, 2012)
(citing Williams v. Best Buy Co., Inc., 269 F.3d 1316 (11th Cir.
2001)). Because federal courts are courts of limited jurisdiction,
this places a heavy burden on a removing defendant.
statutes are construed narrowly.
Therefore, doubts about removal
are resolved in favor of remand.
Id. (citing Am. Tobacco Co., 168
F.3d at 411).
Bradford and the Board argue persuasively that the court lacks
jurisdiction because the removed matter does not constitute a
“civil action” under § 1441(a). Section 1441(a) provides that only
a “civil action” may be removed to federal court.
In this context,
a “civil action” has been interpreted as “a separate suit that is
not ancillary, incidental, or auxiliary to a suit in state court.”
Ohio v. Doe, 433 F.3d 502, 506 (6th Cir. 2006) (citing Bank v.
Turnbull & Co., 83 U.S. (16 Wall.) 190, 193, 21 L.Ed. 296 (1872)).
Put another way, “[a] supplementary [state] court proceeding does
not independently qualify as a removable civil action” under 28
U.S.C. § 1441(a).”
Estate of Jackson v. Ventas Realty, Ltd.
P’ship, 812 F. Supp. 2d 1306, 1312 (M.D. Fla. 2011) (quoting
Armistead v. C&M Transport, Inc., 49 F.3d 43, 46 (1st Cir. 1995)).
Bradford points out that the state court proceeding on its motion
to quash is not a “civil action,” but merely supplemental to
another proceeding currently pending before the Board.
There is no question that the state court proceeding on
Bradford’s motion to quash is “ancillary, incidental, or auxiliary”
to the matter pending before the Board.
No party has cited
authority distinguishing or making the same a “suit in state court”
to “a proceeding before a state regulatory board” in this context.
The court has had no better luck.
Thus, while it is clear that, to
incidental, or auxiliary to a suit in state court,”2 it is not
clear whether this rule equally applies when the matter being
removed is “ancillary, incidental, or auxiliary” to a proceeding
before a state regulatory board.
As such, Dr. Ashcraft has not met
See Am. Tobacco Co., 168 F.3d at 411 (“Indeed, all
doubts about jurisdiction should be resolved in favor of remand to
Bradford and the Board also contend that this matter should be
remanded because it is not within the court’s original jurisdiction
Notably, unlike § 1441, § 1442 has been amended to
redefine “civil action” include any proceeding “whether or not
ancillary to another proceeding.” 28 U.S.C. § 1442 (d)(1). The
fact that Congress expressly amended the definition of “civil
action” under § 1442 to include subpoena enforcement actions,
without also amending § 1441, suggests an intent to allow removal
of such supplementary proceedings under § 1442, but not under §
1441. Thus, while Dr. Ashcraft cites two cases finding subpoena
enforcement proceedings removable, those cases are inapplicable
because they were removed pursuant to 28 U.S.C. § 1442.
as Bradford’s motion to quash does not present a substantial
jurisprudence is that “an action is only removable if it originally
might have been brought in federal court.”
14B Wright & A. Miller,
Federal Practice & Procedure, § 3721 at 7 (2009). Federal question
Constitution, laws, or treaties of the United States.”
The presence or absence of a federal question is governed
by the “well-pleaded complaint rule,” which provides that federal
jurisdiction exists only if a federal question is affirmatively and
distinctly presented on the face of the plaintiff’s complaint.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425
Stated differently, “there must be a substantial federal
question that is an integral element of the plaintiff’s claim for
relief, not merely an ancillary federal issue or a claim that,
properly analyzed, arises only under state law.”
14B CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3722 (4th ed).
Bradford’s motion to quash (or the underlying action before
the Board) does not state any cause of action under federal law.
Instead, Bradford cites federal law as one factor that supports his
arguments for quashing the subpoenas.
The Eleventh Circuit has
clearly held that “[t]he fact that a court must apply federal law
to a plaintiff’s claims or construe federal law to determine
whether the plaintiff is entitled to relief will not confer federal
subject matter jurisdiction . . . .”
Dunlap v. GL Holding Group,
Inc., 381 F.3d 1285, 1291-92 (11th Cir. 2004) (citing Franchise Tax
Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13, 103 S. Ct.
As such, the lack of a federal question deprives
this court of subject-matter jurisdiction and further necessitates
For the foregoing reasons, Bradford’s motion for remand will
A separate order will be issued effectuating this
DONE this 3rd day of June 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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