Thomas v. Crothall Healthcare Inc et al

Filing 19

ORDER denying 9 Motion to Remand to State Court; granting 12 Motion to extend the Rule 26(f) report deadline; joint report due by 12/05/2013; and denying as moot 15 Motion to Dismiss for Failure to State a Claim. Signed by Judge D. P. Marshall Jr. on 11/26/2013. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

LATOYA THOMAS

v.

No. 4:13-cv-575-DPM

CROTHALL HEALTHCARE INC.;
MARK CROWDER; GREGORY MILLER;
and DAVE SUBIN

DEFENDANTS

ORDER

Motion to remand, NQ 9, denied. Thomas's retaliation claim against
Crowder and Miller, the two non-diverse defendants, fails on its face because
Thomas does not allege any retaliatory conduct by Crowder and Miller after
Thomas went to the EEOC- the alleged protected activity. Compare NQ 2 ,-r,-r 38 with NQ 2 ,-r 11.

Because there's no reasonable basis in fact and law

supporting Crowder's or Miller's liability to Thomas, their presence in the
case doesn't defeat diversity jurisdiction. Filla v. Norfolk Southern Railway Co.,
336 F.3d 806,810 (8th Cir. 2003). The service/removal procedure issues as to
them drop out. The Court considered both unserved defendants in its
analysis; they were fraudulently joined. Thomas's claims against Crowder
and Miller are dismissed without prejudice. Block v. Toyota Motor Corp., 665

F.3d 944, 947-48 (8th Cir. 2011). The passing request for an opportunity to
amend would not, if granted, change the jurisdictional analysis: this Court's
removal jurisdiction is measured by the complaint pending in state court at
removal. Standard Fire Insurance Co. v. Knowles, 133 S.Ct. 1345, 1349 (2013).
Any amendment eventually proposed that would destroy diversity will be
considered under the governing law. 28 U.S.C. § 1447(e) & FED. R. CIV. P.
19(b).
The Court has diversity jurisdiction over this case. Motion to extend
the Rule 26(£) report deadline, NQ 12, granted. The Court thanks Thomas for
her report, NQ 18. Joint report due by 5 December 2013. Crowder's and
Miller's motion to dismiss, NQ 15, denied as moot.
So Ordered.

D.P. Marshall Jr. (/
United States District Judge

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