Blair v. Highlands of Little Rock South Cumberland LLC et al

Filing 164

ORDER directing the Clerk of the Court to immediately remand this case to the Circuit Court of Pulaski County. Signed by Judge Billy Roy Wilson on 3/14/2018. (cmn)

IN THE UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
SALLYE BLAIR, by and through
her Power of Attorney, Darrick Blair
VS.

PLAINTIFF

4:16-CV-00264-BRW

HIGHLANDS OF LITTLE ROCK SOUTH
CUMBERLAND, LLC d/b/a Highlands of Little Rock
at Cumberland Therapy and Living Center; et al.

DEFENDANTS

ORDER
Pending are several motions for summary judgment. Responses have been filed.
However, after reviewing the briefs, I find that diversity jurisdiction is lacking and this case must
be REMANDED.
I.

BACKGROUND
Plaintiff alleges that she suffered injuries while residing at Defendants’ nursing home.

Defendants removed this case on May 16, 2016 based on diversity jurisdiction. Although there
was a non-diverse Defendant – Mary D. Huntsman-Hartfield – Defendants asserted that she was
fraudulently joined.
According to the Complaint, Ms. Huntsman-Hartfield was the “Administrator” at the
nursing home and “undertook duties of care to the residents at the facility.”1 Plaintiff alleges that
she “did not use ordinary care to administer the facility in compliance with accepted professional
and industry standards and principles that apply to professionals providing services in such
facilities.”2 Plaintiff also contends that Ms. Huntsman-Hartfield failed to “assign nursing
personnel at the facility duties consistent with their education and experience based on

1

Doc. No. 2.

2

Id.
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[Plaintiff’s] . . . nursing and rehabilitative needs.”3 Additionally, she alleges that Ms. HuntsmanHartfield “failed to supervise” and “failed to ensure that trained and qualified staff, in sufficient
numbers” were at the facility, and this under-staffing led to Plaintiff’s injuries.4
II.

DISCUSSION
“The presence of the nondiverse party automatically destroys original jurisdiction: No

party need assert the defect. No party can waive the defect or consent to jurisdiction. No court
can ignore the defect; rather a court, noticing the defect, must raise the matter on its own.”5
Again, Defendants argue that there is complete diversity because Ms. HuntsmanHartfield is fraudulently joined. Fraudulent joinder exists when a plaintiff files a “frivolous or
otherwise illegitimate claim against a non-diverse defendant solely to prevent removal.”6
“However, if there is a ‘colorable’ cause of action – that is, if the state law might impose liability
on the resident defendant under the facts alleged – then there is no fraudulent joinder.”7 Stated
another way, “if there is a reasonable basis in fact and law supporting the claim, the joinder is
not fraudulent.”8
In the Notice of Removal, Defendants argue that “Arkansas law requires a high degree of
personal involvement on the part of an individual employee before that employee may have
personal liability for harms alleged by a plaintiff.”9 However, as mentioned above, Plaintiff
3

Id.

4

Id.

5

Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998).

6

Filla v. Norfolk Souther Ry. Co., 336 F.3d 806, 809-10 (8th Cir. 2003).

7

Id. at 810.

8

Id.

9

Doc. No. 1.
2

asserted that Ms. Huntsman-Hartfield’s negligence resulted in her injuries. At the time of
removal, state law might have imposed liability on Ms. Huntsman-Hartfield if she had personal
involvement with Plaintiff. Furthermore, if she was fraudulently joined, Defendants could have
requested her dismissal long ago. Instead, after discovery, Defendants’ filed a Motion for
Summary Judgment. The fact that a Motion for Summary Judgment is required to remove Ms.
Huntsman-Hartfield from the case seems to contradict the argument that there was no way that
state law might impose liability on Ms. Huntsman-Hartfield based on the allegations in the
Complaint.
CONCLUSION
Based on the findings of fact and conclusions of law above, the Clerk of the Court is
directed to immediately remand this case to the Circuit Court of Pulaski County.
IT IS SO ORDERED this 14th day of March, 2018.
/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

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