Broadnax et al v. GGNSC Edwardsville III LLC

Filing 28

MEMORANDUM AND ORDER granting 8 Motion to Remand and denying plaintiff's request for fees and costs. Signed by U.S. District Senior Judge Sam A. Crow on 3/28/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARIE BROADNAX, Individually
And as Personal Representative
of the Estate of Mary Craigen,
Plaintiff
vs.

Case No. 13-2640-SAC

GGNSC EDWARDSVILLE III LLC,
GARY HOLMES, and JAYME KUBICKI,
Defendants.
MEMORANDUM AND ORDER
The plaintiff Marie Broadnax (“Broadnax”) in November of 2013
filed an action in the District Court of Wyandotte County, Kansas, bringing
claims for wrongful death and a survival action. The complaint named as the
only defendant GGNSC Edwardsville III LLC (“GGNSC”), the owner and
operator of Golden LivingCenter-Edwardsville (“Golden”), a mental health
facility. The complaint alleged that GGNSC and its staff and agents were
negligent in their care and treatment of Mary Craigen causing her personal
injuries and contributing to the cause of her death. Asserting that all of its
members of the LLC meet the diverse citizenship requirement, GGNSC
removed this action to federal court on the basis of diversity jurisdiction and
the complaint’s prayer of damages in excess of $75,000.00. GGNSC filed its
answer to the complaint in this court on December 16, 2013, (Dk. 5), and on
the same day, filed a motion to stay case and compel arbitration (Dk. 6).

Without leave of the court, the plaintiff Broadnax filed an amended
complaint on December 19, 2013, that added the defendant Gary Holmes,
the administrator of Golden, and the defendant Jayme Kubicki, a nursing
supervisor at Golden. (Dk. 7). The amended complaint alleges that both of
the individual defendants are residents of Kansas.
Besides GGNSC’s motion to stay, there is also pending the
plaintiff Broadnax’s motion to remand (Dk. 8) filed after her amended
complaint, and the joint defendants’ motion to dismiss the defendant Gary
Holmes and Jayme Kubicki or to sever claims against Jayme Kubicki (Dk.
20). The jurisdictional issues raised in the motion to remand are of first
importance.
MOTION TO REMAND
Having added two alleged non-diverse individual defendants to
the action, the plaintiff summarily concludes that diversity jurisdiction is
destroyed and that remand is required. (Dk. 9). The defendants respond
with an affidavit of Gary Holmes stating he is a resident of Missouri but
submit no proof controverting Ms. Kubicki’s residence in Kansas. The
defendants, however, argue for ignoring the citizenship of both Holmes and
Kubicki and seek to have them dismissed from the action or the claims
against them severed. The defendants do not challenge the propriety of
adding the individual defendants under Fed. R. Civ. P. 15. They rely on Fed.
R. Civ. P 19 and 21 as governing whether the individual defendants should
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remain in the action. GGNSC premises their arguments on now
acknowledging vicarious liability for Holmes, Kubicki and any other staff
member who may have been acting within the course and scope of their
employment, and GGNSC also offers proof of the adequate insurance
coverage for any recovery in this action. Highlighting the timing of the
amended complaint and the plaintiff’s prior knowledge of Holmes’ and
Kubicki’s involvement in the relevant events, the defendants accuse the
plaintiff of adding the individual defendants just to defeat diversity
jurisdiction. The defendants deny that Holmes and Kubicki are necessary
parties for “just adjudication.” Alternatively, the defendants insist it’s enough
for diversity jurisdiction to have existed at the time of removal for the court
now to exercise supplemental jurisdiction over the new defendants.1
In reply, the plaintiff points to GGNSC’s original answer (Dk. 5)
that denied the complaint’s allegations of vicarious liability as the first time
the plaintiff knew GGNSC could be denying agency liability for Kubicki’s
actions. The plaintiff argues the individual defendants are indispensable
parties, in part, because the terms of the arbitration agreement purport to
require a single arbitration which includes GGNSC’s agents, employees, and
servants. The plaintiff refutes the addition of Kubicki to be fraudulent joinder

The court immediately rejects this alternative argument as contrary to the
express terms of 28 U.S.C. § 1447(e). The statute does not give the district
court the option of joining a non-diverse defendant and retaining
jurisdiction. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th
Cir. 2009).
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and rejects the significance the defendants attach to the timing of the
amended complaint.
The amended complaint alleges Golden accepted Mary Craigen
as a resident diagnosed with unspecified psychosis and depressive disorder
that significantly impaired cognition and caused psychotic symptoms such as
delusions and hallucinations. The patient allegedly presented a high risk of
falling based on her “history of falls, impaired gait, antidepressant and
antianxiety medication use, improper footwear,” and overall health. (Dk. 7,
¶ 18). From January to July of 2012, the patient fell three times, and the
staff documented no apparent injuries from the falls. In the month of
September, she fell two more times, and the first time she sustained injuries
for which she was treated and evaluated at another facility. Two more times
in October, she fell. The second time she violently struck her face and head
against the door before falling to the floor. The complaint alleges that after
this fall Ms. Craigen’s condition deteriorated, she was not monitored
correctly, and her physicians were not informed that she could no longer
walk. While at another medical facility being treated for an infection, Ms,
Craigen was eventually diagnosed with “acute unstable fractures C4-5 and
C3-4” which required surgery. The complaint alleges the failure to make
timely disclosures of the fall and of the continuing neurological decline
delayed the diagnosis of the neck fracture and contributed to her irreversible
quadriplegia and death.
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Apparently relying on the procedure established by Fed. R. Civ.
P. 15(a)(1)(B), the plaintiff filed her first amended complaint (Dk. 7) within
21 days after the defendant’s answer (Dk. 5) and did not seek the court’s
permission before filing it. This amendment, however, sought to add a nondiverse defendant who would destroy this court’s subject matter jurisdiction.
This triggers 28 U.S.C. § 1447(e), which provides: “If after removal the
plaintiff seeks to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or permit joinder
and remand the action to the State court.” The joinder of non-diverse
defendants rests in the court’s discretion after “balanc[ing] the equities. ”
Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009).
That the plaintiff has already filed the amended complaint with a
non-diverse party does not change the analysis. See Boyce v. CitiMortgage,
Inc., ---F. Supp. 2d---, 2014 WL 241510, at *5 (W.D. Tex. Jan. 22, 2014);
Baumeister v. Home Depot U.S.A., Inc., 2011 WL 650338 at *2 (D. Colo.
Feb. 11, 2011); Reigel v Canyon Sudar Partners, L.L.C., 2007 WL 3274430
at *2 (D. Colo. Nov. 5, 2007). When a plaintiff joins a non-diverse party
pursuant to Rule 15(a) without leave of the court, the district court retains
the discretion under § 1447(e) to review the post-removal joinder:
Reading Rule 15(a) in connection with Fed. R. Civ. P. 19 and 21,
and 28 U.S.C. § 1447(e), resolves any doubts over whether the district
court has authority to pass upon any attempts—even those for which
the plaintiff needs no leave of court—to join a nondiverse defendant.
See 28 U.S.C. § 1447(e) (“the court may deny joinder, or permit
joinder”); see also Fed. R. Civ. P. 19(a) (“A person who is subject to
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service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party ...”) (emphasis added); Fed.R.Civ.P. 21 (“Parties may be
dropped or added by order of the court on motion of any party or of its
own initiative at any stage of the action and on such terms as are
just.”). Thus, a district court has the authority to reject a post-removal
joinder that implicates 28 U.S.C. § 1447(e), even if the joinder was
without leave of court. See Ascension Enters., Inc. v. Allied Signal,
Inc., 969 F. Supp. 359, 360 (M.D.La. 1997) (holding that court has
authority under § 1447(e) to reject Rule 15(a) amendment that, postremoval and without leave of court, seeks to add nondiverse
defendant); Whitworth v. TNT Bestway Transp. Inc., 914 F. Supp.
1434, 1435 (E.D. Tex. 1996) (same); cf. Pfeiffer v. Hartford Fire Ins.
Co., 929 F.2d 1484, 1488 (10th Cir. 1991) (rejecting assumption that
“a party may force remand of an action after its removal from state
court by amending the complaint to destroy the federal court's
jurisdiction over the action.”).
That is what happened here. On March 20, 1998—after the case
had been removed—Mayes filed her amended complaint naming Key
as a defendant. . . . Since no party raised the fact that Key was not
diverse, and since the district court had no prior opportunity to pass
upon the propriety of Key's joinder, the district court properly could
have invoked its authority, under § 1447(e) and related authority, to
determine whether Key was an appropriate party. See Hensgens v.
Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987) (vacating joinder
order because district court permitted post-removal joinder of
nondiverse party “as a routine matter,” without actually exercising
discretion over the joinder).
Mayes v. Rapoport, 198 F.3d 457, 462 n.11 (4th Cir. 1999); see Martinez v.
Holzknecht, 701 F. Supp. 2d 886, 888 (S.D. Tex. 2010) (amendments
joining non-diverse defendants that are otherwise freely allowed under Fed.
R. Civ P. 15(a)(2) are subject to the court’s discretion under § 1447(e)).
Thus, the court retains the discretion to decide now whether the plaintiff
may amend her complaint to add the defendant Kubicki.
If joinder of the party is required by Rule 19, then the court
either must remand the case under § 1447(e) or “deny joinder, in which
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case Rule 19(b) also requires that the action be dismissed.” McPhail v. Deere
& Co., 529 F.3d 947, 951 (10th Cir. 2008) (footnote omitted). If joinder is
not required but permitted by Rule 20(a)(2), then the court has discretion
under § 1447(e). Id. (citing State Distributors, Inc. v. Glenmore Distilleries
Co., 738 F. 2d 405, 416-17 (10th Cir. 1984)). “In exercising its discretion,
the court must balance ‘the danger of parallel federal/state proceedings with
the inherent dangers of inconsistent results and the waste of judicial
resources” against the diverse defendant’s ‘interest in retaining the federal
forum.’” Martinez, 701 F. Supp. 2d at 889 (quoting Hensgens v. Deere &
Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). The Tenth Circuit’s discussion of
the relevant factors has included:
In determining whether to allow amendment of a complaint, the court
typically considers several factors. These include whether the
amendment will result in undue prejudice, whether the request was
unduly and inexplicably delayed, was offered in good faith, or that the
party had had sufficient opportunity to state a claim and failed. E.g.,
Local 472, etc. v. Georgia Power Company, 684 F.2d 721 (11th Cir.
1982). Where the party seeking amendment knows or should have
known of the facts upon which the proposed amendment is based but
fails to include them in the original complaint, the motion to amend is
subject to denial. See Svoboda v. Trane, 495 F.Supp. 367 (E.D. Mo.
1979), aff'd 655 F.2d 898 (8th Cir. 1981).
Also amendments adding parties may involve consideration of
Fed.R.Civ.P. 20, governing permissive joinder. E.g., Martinez v.
Safeway Stores, Inc., 66 F.R.D. 446 (N.D.Cal. 1975) (where the court
stated that it is implicit in Rule 15 that plaintiff may amend his
complaint only to add matters that otherwise would have been proper
to include in the original complaint). Consequently, this requires a
determination by the district court of whether any right to relief
asserted by plaintiffs against all defendants “in respect of or arising
out of the same transaction, occurrence, or series of transactions or
occurrences and any operation of law or fact common to all will arise in
the action.” Fed.R.Civ.P. 20(a).
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State Distributors, Inc. v. Glenmore Distilleries Co., 738 F. 2d 405, 416
(10th Cir. 1984); see Byers v. Life Care Centers of America, Inc., 2008 WL
1867976, at *1 (D. Kan. Apr. 24, 2008). The Fifth Circuit employs a similar
set of factors:
(1)the extent to which the purpose of the amendment is to defeat
federal jurisdiction; (2) whether the plaintiff has been dilatory in
asking for the amendment; (3) whether the plaintiff will be
significantly injured if the amendment is not allowed; and (4) any
other factors bearing on the equities.
Santillana v. Manhattan Construction Company, 2013 WL 4854525 at *1
(N.D. Tex. Sep. 10, 1013) (citing Priester v. JP Morgan Chase Bank, N.A.,
708 F.3d 667, 679 (5th Cir.), cert. denied, 134 S. Ct. 196 (2013), and
Hensgens, 833 F. 2d at 1182)).
The amended complaint alleges in count one that the individual
defendants and the defendant GGNSC breached the following duties: “to act
in accordance with the standards of care required of a mental health nursing
facility” (¶ 38), “to implement and enforce policies and procedures to ensure
proper care for and treatment of residents” (¶ 39), “to have sufficient and
qualified staff” (¶ 40), and “to ensure that its nurses and other staff were
properly educated and trained with regard to the care and treatment of
residents” (¶ 41). (Dk. 7). Count two alleges vicarious liability against the
defendant GGNSC for breach of the “duty to act in accordance with the
standards of care required of a mental health nursing facility and its
personnel.” Id. at ¶ 47. The amended complaint at ¶¶ 15 and 16 allege that
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“[a]ll actions” of GGNSC’s nursing staff and other employees “who were
responsible for providing care and treatment to Mary Craigen . . . were
performed within the scope of their employment or agency” making GGNSC
vicariously liable for their actions. (Dk. 7). The defendant GGNSC’s answer
states that it lacks “sufficient information” and, therefore, “denies the
allegations” of ¶¶ 15 and 16. (Dk. 12). With regard to vicarious liability, the
Kansas Supreme Court has recognized the following as the general rules:
“The general rule is that the principal and agent are jointly and
severally liable for the tortious conduct of the agent for whose conduct
he is responsible, and that, as a result, they may be joined in a single
suit and a judgment may be obtained against each. In such a
situation, if the judgments on the merits are inconsistent, i.e., if there
is a judgment for the agent and against the principal, the judgment
against the principal must be set aside, unless there is some other
ground for the principal's liability, as where he is personally negligent.
Likewise, where the third party releases the agent, the principal will
also be relieved of liability. If the principal controlled the prior action,
he will be bound by any judgment against the agent. In any case, the
amount of compensatory damages that can be awarded against each
must be the same. However, where the principal is liable for punitive
damages, the amount may differ from that awarded against the
agent.” Sell, Agency § 94, 83–84 (1975).
Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 707-08, 763 P.2d 1085
(1988).
The plaintiff argues the joinder of Kubicki is required under Rule
19(a) in that the defendant GGNSC has denied the allegation of vicarious
liability and that Kubicki is an indispensable party to the defendants’ joint
motion to stay case and compel arbitration (Dks. 6 and 23). The plaintiff
believes “a strong argument exists that her [Kubicki’s] acts and omissions
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were reckless and will warrant a request for punitive damages.” (Dk. 25, p.
4). The defendants offer no persuasive response to the contention that this
court would not be able to afford complete relief under the arbitration
agreement or protect Ms. Kubicki’s interest in compelling arbitration if she
were not joined as a party. Such relief and protection, as well as avoiding
the risk of inconsistent obligations, are afforded by having the issues
concerning the enforceability of the arbitration agreement decided in a single
forum.
Even assuming a different conclusion of the Rule 19(a) analysis,
joinder remains entirely appropriate under Rule 20(a)(2) as there is joint
and several liability alleged arising out of the same occurrence with many
questions of law and fact common to all defendants. This triggers
consideration of the factors relevant to the court’s exercise of discretion
under § 1447(e). For the reasons stated hereafter, the court finds the
balance of equities favor allowing the amended complaint and remanding
this case for lack of subject matter jurisdiction.
The court is not persuaded the addition of the defendant Kubicki
to the suit was primarily driven by defeating federal jurisdiction, although
this result certainly was desirable to the plaintiff. The amended complaint
alleges against Ms. Kubicki a viable claim that is cognizable under Kansas
law and so rebuts any compelling inference of an improper purpose. See
Byers v. Life Care Centers of America, Inc., 2008 WL 1867976 at *2 (D.
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Kan. 2008) (defendant nursing home had not shown the plaintiff would be
unable to establish a cause of action against the resident nurse who had
been in charge of the decedent’s care); Reigel v. Canyon Sudar Partners,
L.L.C., 2007 WL 3274430 at *4 (non-diverse nurses who were responsible
for deceased resident’s care at a nursing care facility were properly added);
cf. Houk v. Travelers Home and Marine Ins. Co., 2012 WL 5430979 at *3 (D.
Colo. 2012) (Because the requirements of Rule 20(a)(2) were met, “the
Court necessarily finds that Plaintiffs’ request for joinder is made in good
faith and not solely for the purpose of destroying the Court’s subject matter
jurisdiction.”). That the plaintiff filed the amended complaint only days after
removal without any intervening discovery indicates the plaintiff’s prior
knowledge of Ms. Kubicki’s involvement in the alleged events and arguably
suggests a diversity-defeating purpose for adding Ms. Kubicki. Nonetheless,
the plaintiff also explains adding Ms. Kubicki only after the defendant GGNSC
filed its answer denying vicarious liability. Since GGNSC’s notice of removal
and answer were filed on the same day, any inference drawn simply from
the timing of the filings is indistinguishable. Without knowing what reasons
or facts could be behind GGNSC’s denial of vicarious liability, the plaintiff’s
decision to add the individual actors seems prudent and reasonable.
Additionally, the possibility of state law sustaining a claim of individual
liability against Ms. Kubicki forecloses a fraudulent joinder argument. See
Fallas v. Lincare, Inc., 2012 WL 2115176 at *4, report and recommendation
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adopted by, 2012 WL 2091526 (D. Colo. 2012); Archuleta v. Taos Living
Center, LLC, 791 F. Supp. 2d 1066, 1079-1081 (D. N.M. 2011).
As for the other factors, they too favor adding the individual
defendant and remanding the case. The circumstances support no inference
that the plaintiff was dilatory in adding the defendant Kubicki. See Martinez,
701 F. Supp. 2d at 891. Without the amendment, the plaintiff certainly
would be prejudiced by the burden and cost of litigating claims arising from
the same incident in two forums or by foregoing the claims against Kubicki
and risking an adverse outcome on the vicarious liability issue. The
defendant GGNSC’s interest in preserving a federal forum fails to tip the
balance particularly when GGNSC is insisting that the plaintiff’s action is
subject to an enforceable arbitration agreement. The court allows the
amendment and remands the action.
In her reply brief, the plaintiff adds a single-sentence request for
attorneys’ fees and costs. “‘Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should be denied.’“ Porter Trust v.
Rural Water Sewer and Solid Waste Management Dist. No. 1, 607 F.3d 1251,
1253 (10th Cir. 2010) (quoting Martin v. Franklin Capital Corp., 546 U.S.
132, 141 (2005)). The plaintiff’s cursory request and briefing of this issue

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fails to establish entitlement to fees and costs under this standard. The
plaintiff’s request is denied.
IT IS THEREFORE ORDERED that the plaintiff’s motion to remand
is granted but the plaintiff’s request for fees and costs is denied;
IT IS FURTHER ORDERED that this case is immediately
remanded to the District Court of Wyandotte County, Kansas. The clerk of
the court is directed to mail a certified copy of this order to the clerk of the
District Court of Wyandotte County, Kansas, pursuant to 28 U.S.C. §
1447(c).
Dated this 28th day of March, 2014, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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