Henson v. Capital Seniorcare Ventures, LLC et al

Filing 54

MEMORANDUM OPINION AND ORDER that plaintiff's 38 Motion to remand is granted and denying as moot plaintiff's request for a hearing on her motion to remand; further denying plaintiff's request for attorney fees and costs and separate defendant Column Guaranteed, LLC's 7 Motion to dismss remains pending for the State Court to resolve; further case shall be remanded forthwith to the Circuit Court of Crawford County, Arkansas. Signed by Honorable Robert T. Dawson on May 2, 2013. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LAURA E. HENSON, as Power
of Attorney for and on behalf
of BARBARA J. SIMON
v.

PLAINTIFF

Case No. 2:13-CV-2018

CAPITAL SENIORCARE VENTURES, LLC;
COLUMN GUARANTEED, LLC; SLC PROPERTIES, LLC;
SLC PROPERTY HOLDINGS, LLC; SLC PROPERTY
INVESTORS, LLC; EOR-ARK, LLC; VAJ, LLC;
SLC OPERATIONS MASTER TENANT, LLC;
SLC OPERATIONS HOLDINGS, LLC; SENIOR LIVING
COMMUNITIES OF ARKANSAS, LLC; SLC PROFESSIONAL
HOLDINGS, LLC; SLC PROFESSIONALS, LLC;
SENIOR VANTAGE POINT, LLC; ADDIT, LLC;
QUALITY REVIEW, LLC; JOHN W. DWYER; CAPITAL
FUNDING GROUP, INC.; CAPITAL FUNDING, LLC;
CSCV HOLDINGS, LLC; ARKANSAS SNF OPERATIONS
ACQUISITION, LLC; ARKANSAS NURSING HOME
ACQUISITION, LLC; CAPITAL FINANCE, LLC;
LANA ROGERS, in her capacity as Administrator
of Pointer Trail Health and Rehabilitation, LLC;
JOHN DOES 1-5; UNKNOWN DEFENDANTS; POINTER
TRAIL HEALTH AND REHABILITATION; POINTER TRAIL
HOLDINGS, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiff’s Motion to Remand
(Doc. 38) and supporting Memorandum Brief (Doc. 39), Defendants’
(except

Column

Response

(Doc.

Notice

of

Guaranteed
45),

LLC,

Plaintiff’s

Supplemental

Authority

hereinafter

Reply
(Doc.

(Doc.
50),

“Defendants”)

47),

Plaintiff’s

and

Defendants’

Response to Notice of Supplemental Authority (Doc. 53).

For the

reasons reflected herein, Plaintiff’s Motion to Remand (Doc. 38)

Page 1 of 5

is GRANTED in part and DENIED in part, and this case is remanded
to the Circuit Court of Crawford County, Arkansas.
I.

Background
On November 29, 2012, Plaintiff filed her complaint in the

Circuit Court of Crawford County, Arkansas, alleging negligence,
medical malpractice, common law civil conspiracy, violations of
certain Arkansas statutes protecting the rights of nursing home
residents,

and

individual

Defendants,

facilities.

separate

claims

who

of

were

negligence

the

against

Administrators

of

the
the

(See Doc. 5 ¶¶ 57-143).

On January 18, 2013, Defendants jointly filed a Notice of
Removal (Doc. 1) claiming entitlement to removal under 28 U.S.C.
§

1331

and

conspiracy
argued

1441(b)

claim

alleging

raised

Plaintiff’s

civil

a

Plaintiff’s

stated

federal

conspiracy

claim

state
issue.
alleged

conspired to defraud HUD, Medicare, and Medicaid.

law

civil

Defendants
Defendants
Defendants

argued that because Plaintiff must prove an underlying wrongful
act to establish a civil conspiracy, she must prove that the
Defendants violated Federal laws and regulations regarding HUD
financing, Medicare, and/or Medicaid and therefore her claim for
civil conspiracy necessarily raised a stated federal issue.
On February 6, 2013, Plaintiff moved to remand the case to
state

court

arguing

jurisdiction

is

lacking

under

28

U.S.C.

§ 1331 because no federal question is presented in Plaintiff’s
Page 2 of 5

properly-pleaded civil conspiracy claim,
jurisdiction

is

not

created

merely

programs or agencies in a pleading.

and federal question

by

mentioning

Federal

Should the Court find a

federal question, Plaintiff alternatively moved for the Court to
sever and remand all other claims.

Plaintiff also moved for an

award of reasonable attorneys’ fees and costs, and a hearing on
her motion to remand.
II.

Discussion
“[F]ederal-question

jurisdiction

will

lie

over

state-law

claims that implicate significant federal issues.”

Grable &

Sons Metal Products, Inc. v. Darue Engineering & Manufacturing,
545

U.S.

308,

312

(2005).

The

exercise

of

subject-matter

jurisdiction over state law claims “demands not only a contested
federal

issue,

but

federal

interest

a

in

substantial
claiming

inherent in a federal forum.”

one,

the

indicating

advantages

a

thought

serious
to

be

Id. at 313.

Defendants specifically argued that their alleged wrongful
conduct under Federal statutes and regulations constitutes an
essential
claim.

element

of

Plaintiff’s

state

law

civil

conspiracy

Defendants contend that in order for Plaintiff to prove

her civil conspiracy claim she is required to prove violations
of certain federal statute and regulations.
that

the

referenced

paragraphs,

two

out

of

Plaintiff argued
the

nearly

150

paragraphs comprising her complaint, merely outline the manner
Page 3 of 5

in which the Defendants funded the purchase and operation of
their facilities, not that the funding itself was a violation of
federal statutes and regulations.

(Doc. 39 at 6).

Plaintiff

argues the references to HUD, Medicare, and Medicaid cannot be
fairly

read

to

raise

a

question

regarding

compliance

with

federal law.
The

Court

finds

that

the

plain

language

of

the

civil

conspiracy claim does not allege any improper obtaining of funds
from HUD, Medicaid, and Medicare programs.
wrongful

conduct

intentional

in

conspiracy

the
to

civil

Instead, the alleged

conspiracy

structure

and

claim

funnel

is

the

proceeds

for

operations and patient care into lease and fee arrangements with
various
leave

affiliated

entities,

with

insufficient

operating

funds,

substantive

measure

injuries.
wrongful

“The
conduct

will

turn

on

knowledge

that

foreseeably

what

of

this

resulting

Defendants’

Defendants

federal money and why, not how they got it.”

would
in

allegedly

did

with

the

Slater v. Capital

SeniorCare Ventures, LLC, et al., No. 5:12-cv-00447-DPM (E.D.
Ark. April 4, 2013) (citing Compare Gaming Corp. of America v.
Dorsey & Whitney, 88 F.3d 536, 551 (8th Cir. 1996).

The fact

that Defendants obtained federal funding is incidental to the
civil

conspiracy

claim;

no

contested

issue arises from the same.

Page 4 of 5

or

substantial

federal

Resolving all doubts in favor of remand to preserve the
congressionally approved balance of federal and state judicial
responsibilities, any federal issues present are not disputed
enough

or

substantial

jurisdiction.
Iowa

Power

enough

to

support

federal

question

Slater, 5:12-cv-00447-DPM, at 2. (citing Central
Co-op.

v.

Midwest

Independent

Transmission

Cooperative, 561 F3d 904, 912 (8th Cir. 2009).
III. Conclusion
Plaintiff’s Motion to Remand (Doc. 38) is GRANTED in part
and

DENIED

in

part.

Plaintiff’s

request

to

have

this

case

remanded is GRANTED, Plaintiff’s request for a hearing on her
motion to remand is DENIED as moot, and Plaintiff’s request for
attorney fees and costs in pursuit of this motion is DENIED.
Separate Defendant Column Guaranteed, LLC’s Motion to Dismiss
(Doc. 7) remains pending for the State court to resolve.
case

shall

be

remanded

forthwith

to

the

Circuit

Court

This
of

Crawford County, Arkansas.
IT IS SO ORDERED this 2nd day of May, 2013.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge

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