Addiction & Mental Health Services Inc v. Ashcraft

Filing 10

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 06/03/2013. (CVA)

FILED
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
SOUTHERN DIVISION
}
}
}
}
}
}
}
}
}
}
}

IN THE MATTER OF:
WILLIAM ARTHUR ASHCRAFT,
D.M.D.

CIVIL ACTION NO.
2:13-cv-00623-WMA

MEMORANDUM OPINION
Dr. William Arthur Ashcraft (“Dr. Ashcraft”) removed the
above-entitled matter to this court from the Circuit Court of
Jefferson

County,

Alabama

pursuant

to

28

U.S.C.

§

1441(b).

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
jurisdiction.
Examiners
Bradford’s

of

At the court’s invitation, the Board of Dental
Alabama

motion.

(“Board”)
(Doc.

filed

9).

a

brief

Because

in

this

support
matter

of
was

improvidently removed, the court will grant Bradford’s motion for
remand.
Background
In March 2012, the Board received notice from another state
regulatory

agency

regarding

Ashcraft, a dental licensee.

the

possible

impairment

of

Dr.

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,

Dr.

rehabilitative

Ashcraft

treatment

at

entered

and

completed

Bradford.

At

the

in-patient

onset

of

his

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
Alabama.

See ALA. CODE § 34-9-2(a) (1975).

The Dental Practices

Act sets forth grounds for disciplinary action, one of which is
being “a

habitual

user

of

intoxicants

or

drugs

rendering

[a

licensee] unfit for the practice of dentistry or dental hygiene.”

2

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
setting

forth

the

parameters

for

his

practice

and

sobriety

maintenance. Similar to consent orders executed by other licensees
who have undergone treatment for impairment, the terms of the
consent

order

and

accompanying

contract

included

mandatory

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
records

on

behalf

of

administrative hearing.

Dr.

Ashcraft

at

the

April

5,

2013

The next day, Dr. Ashcraft rescinded all

executed authorizations for release of information regarding his

3

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
order

and

under

state

law

counselor-patient privilege.

patient-psychologist

privilege

and

See 42 U.S.C. §290dd-2; 42 C.F.R.

Part 2 (1991); 42 C.F.R. §§ 2.63 and 2.64 (1991).

In addition,

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
this court.

The Board was not notified of Dr. Ashcraft’s motion

and did not join in the notice of removal.
Analysis

4

“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.”
(b)(2)(A).

28 U.S.C. § 1446

This requires that “all defendants must consent to the

removal of a case to federal court.”
Assur. Co., 264
omitted).

As

F.3d
all

1040,
rules

1044

Russell Corp. v. Amer. Home

(11th

governing

Cir.

2001)

removal,

(citations

“the

unanimity

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
“defendant”

and

meets

the

“nominal

party

exception”

to

the

unanimity requirement.

The “normal party exception” provides that

“nominal

parties,

or

formal

being

neither

necessary

nor

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
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
5

A

“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

ed. 2009).
Despite Dr. Ashcraft’s urging to the contrary, the Board has
a

very

significant

subpoenas.

interest

in

the

issuance

of

the

subject

The Board itself requested the issuance of a subpoena

to one of the doctors at Bradford to appear at the hearing.
Furthermore,

it

is

one

of

the

Board’s

primary

functions

to

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
by

rescinding

his

authorization

for

release

necessitating Bradford’s motion to quash.
than a nominal party.

of

information,

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

granted.
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.
6

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.

Id.

Removal

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
7

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.
be

removable

under

§

1441,

Thus, while it is clear that, to

the

matter

cannot

be

“ancillary,

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.
his burden.

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
state court”).
Bradford and the Board also contend that this matter should be
remanded because it is not within the court’s original jurisdiction

2

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.
8

as Bradford’s motion to quash does not present a substantial
question

of

federal

law.

The

first

principle

of

removal

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
jurisdiction

extends

to

“civil

actions

arising

Constitution, laws, or treaties of the United States.”
§ 1331.

under

the

28 U.S.C.

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
(1987).

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

9

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.
2841) (1983)).

As such, the lack of a federal question deprives

this court of subject-matter jurisdiction and further necessitates
remand.
Conclusion
For the foregoing reasons, Bradford’s motion for remand will
be granted.

A separate order will be issued effectuating this

opinion.
DONE this 3rd day of June 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

10