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)

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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 -2-

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