Thomas v. ABCO Montgomery South Haven Operating Company, LLC et al

Filing 18

ORDER finding defs' 17 objection is without merit; ORDERING that: (1) the 16 REPORT AND RECOMMENDATION of the Magistrate Judge is adopted; (2) plf's 6 Motion to Remand is GRANTED and this action is REMANDED to the Circuit Court of Montgomery County, AL; and (3) directing the clerk to take the necessary steps to effectuate the remand. Signed by Chief Judge William Keith Watkins on 7/17/18. Certified copy mailed to Circuit Court Clerk Montgomery County.(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIE MAY THOMAS as daughter
and next friend of Lula Cayson,
Plaintiff,
v.
ABCO MONTGOMERY SOUTH
HAVEN OPERATING COMPANY
LLC, doing business as South Haven
Health and Rehabilitation Center, SSC
MONTGOMERY SOUTH HAVEN
OPERATING COMPANY, LLC, and
LARRY HUFFMAN,
Defendants.

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ORDER
Before the court are the Magistrate Judge’s Recommendation (Doc. # 16) and
Defendants’ untimely

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objection (Doc. # 17).

As explained below, the

Recommendation is due to be adopted; Defendants’ objection is due to be overruled;
and this case is due to be remanded to the Circuit Court of Montgomery County,
Alabama.
On June 21, 2018, Defendants filed a Notice of Removal in this court alleging
diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332.

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Plaintiff Willie

Although the objection is untimely and leave to file out of time has not been sought, the
objection will be considered.

May Thomas is a citizen of Alabama.

Although Defendant Larry Huffman is a

citizen of Alabama and complete diversity of citizenship is lacking, Defendants
argue that Plaintiff only included Huffman in this suit for the sake of defeating
subject-matter jurisdiction.

Because Plaintiff cannot state a claim against

Huffman, Defendants argue, he was fraudulently joined, the action is due to be
dismissed as it relates to Huffman, and this court has subject-matter jurisdiction.
“When considering a motion for remand, federal courts are not to weigh the
merits of a plaintiff’s claim beyond determining whether it is an arguable one under
state law.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). With this
in mind, the Magistrate Judge found that Defendants “failed to meet the heavy
burden of showing that there is no possibility that [Plaintiff] can[] succeed on her
AMLA claims against Huffman.” (Doc. # 16, at 9.)

Because Defendants did not

establish that Huffman was fraudulently joined, the Magistrate Judge found,
complete diversity of citizenship is lacking, and the case must be remanded to state
court.
In objecting to the Magistrate Judge’s Recommendation, Defendants argue
that Larry Huffman — the administrator of South Haven Health and Rehabilitation
Center — is not a “health care provider” within the meaning of section 6-5-481 of
the Alabama Code, so he cannot be liable to Plaintiff for any alleged damages, and
his presence in this case is the result of fraudulent joinder. Under Alabama law,
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Huffman would be a health care provider if he is “directly involved in the delivery
of health care services.” Ala. Code § 6-5-481(8).
In support of their argument, Defendants cite Moore v. Fresenius Medical
Care Holdings, Inc., No. CIV.A. 14-381-KD-N, 2014 WL 5456548 (S.D. Ala. Oct.
27, 2014), as an example of a court applying Alabama law to find that someone like
Huffman was not a “health care provider” in this context. There, the defendant in
question swore that she had neither “provided direct patient care” nor “oversee[n]
hemodialysis treatment.”

Id. at *4 (alteration in original).

In contrast, here,

Huffman has sworn only that he has never been licensed to provide medical care and
that he “never provided medical care to Lula Cayson.” (Doc. # 1-2, at 2.) Even
taken as true, 2 this statement would not dictate that Huffman was not “directly
involved in the delivery of health care services.” Ala. Code § 6-5-481(8); cf. id.
§ (1) (defining medical practitioner as one “licensed to practice medicine”).
Plaintiff’s complaint alleges that Huffman “is charged with the responsibility for the
management of the nursing home, and ensuring that the residents at the facility
receive good quality care in order to maintain their health status.” (Doc. # 1-1, at 5–
6.) Defendants do not clearly dispute this description, and the court agrees with the

The court is mindful that it must “evaluate the factual allegations in the light most
favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of
the plaintiff.” Crowe, 113 F.3d at 1538.
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Magistrate Judge’s conclusion that it may —“arguabl[y]”— fall within the meaning
of health care provider under Alabama law. See Crowe, 113 F.3d at 1538.
For these reasons, Defendants’ objection is without merit; the Magistrate
Judge’s Recommendation is due to be adopted; and this case is due to be remanded
to the Circuit Court of Montgomery County, Alabama.

Accordingly, it is

ORDERED that:
1.

The Recommendation of the Magistrate Judge (Doc. # 16) is adopted;

2.

Plaintiff’s motion to remand (Doc. # 6) is GRANTED and this action

is REMANDED to the Circuit Court of Montgomery County, Alabama; and
3.

The Clerk of the Court is DIRECTED to take the necessary steps to

effectuate remand.
DONE this 17th day of July, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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