Lindon v. Kakavand et al

Filing 12

MEMORANDUM OPINION & ORDER: For reasons discussed, Plaintiff's 4 MOTION to Remand by Tonya Lindon is DENIED. Signed by Judge Danny C. Reeves on 09/27/2013. (KLB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
TONYA LINDON, as Parent of
a Minor and Next Friend MJL,
Plaintiff,
V.
BAHRAM KAKAVAND, M.D., et al.,
Defendants.

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Civil Action No. 5: 13-26-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of Plaintiff Tonya Lindon’s1 motion to
remand this matter to the Fayette Circuit Court. [Record No. 4] For the reasons explained
below, the motion will be denied.
I.
This medical negligence/malpractice suit arises from a medical procedure performed
by Defendant Bahram Kakavand, M.D, on the minor child MJL. On December 13, 2012, the
plaintiff commenced this action in Fayette Circuit Court, naming Dr. Kakavand and
Kentucky Medical Services Foundation, Inc., (“KMSF”) as defendants. The plaintiff is a
citizen and resident of the Commonwealth of Kentucky. Dr. Kakavand is a citizen of Iran,

1
Plaintiff Lindon is the parent of the child allegedly injured by medical procedures performed by
Defendant Bahram Kakavand, M.D. Pursuant to the Court’s redaction policy concerning the name of minor
children and Rule 5.2 of the Federal Rules of Civil Procedure, the initials “MJL” will be used in place of the
minor child’s name.

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but is a lawful, permanent resident of the United States, domiciled in Virginia. [Record
No. 3, p. 2 ¶¶ 6, 7] KMSF is a Kentucky corporation, incorporated and formed pursuant to
Kentucky law. [Record No. 3-1, p. 8 ¶ 3]
The plaintiff alleges that, on or about October 14, 2011, MJL underwent an electrophysiology study and ablation performed by Dr. Kakavand at UK Healthcare Kentucky
Children’s Hospital. [Id. ¶ 4] During this procedure, MJL developed a complete heart block
that necessitated an emergency implantation of a dual-chamber pacemaker. [Id. ¶ 5] The
plaintiff contends that Dr. Kakavand “was the agent, servent and employee of [KMSF]” and
that KMSF was negligent in its “medical service to [the plaintiff] through its agents, servants
and employees or ostensible agents, servants and employees, including but not limited to
Bahram Kakavand, M.D.” [Id. ¶¶ 2-3] However, she has provided no factual support for this
conclusory allegation. As a result of the defendants’ claimed negligence, MJL allegedly
sustained injuries which have required additional medical treatment. The plaintiff seeks an
award of damages for past and future physical and mental pain and suffering, past and future
medical expenses, and permanent impairment of M.J.L.’s power to earn money. The plaintiff
also seeks to recover punitive damages from the defendants. [Id., pp. 8-9 ¶¶ 9-10]
On January 28, 2013, Dr. Kakavand removed this matter to this Court pursuant to 28
U.S.C. §§ 1441 and 1446. [Record No. 3] In the Notice of Removal, Dr. Kakavand asserts
that KMSF’s citizenship should be disregarded for purposes of determining diversity
jurisdiction under 28 U.S.C. § 1332(a) because KMSF was fraudulently joined as a party.
[Id., pp. 3-4 ¶¶ 12] The plaintiff filed a timely motion to remand, arguing that: (i) the notice
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of removal was untimely; (ii) KMSF did not consent or join in the notice of removal; and (iii)
KMSF was properly joined. As a result, the plaintiff argues that this Court lacks jurisdiction
under 28 U.S.C. § 1332. [Record No. 4] In her reply, the plaintiff raises a new argument that
the defendant’s evidence regarding the amount in controversy should be disregarded and that
this matter should be remanded for failure to sufficiently demonstrate that her claims exceed
$75,000.00, exclusive of interest and costs. [Record No. 6, pp. 1-5]
II.
A case filed in state court is removable only if it could have been brought in federal
court originally. See 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of
which the district courts of the United States have original jurisdiction[] may be
removed . . . to the district court of the United States for the district and division embracing
the place where such action is pending.”); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83
(2005) (“[Section] 1441 . . . authorizes removal of civil actions from state court to federal
court when the action initiated in state court is one that could have been brought, originally,
in federal district court.”). Pursuant to 28 U.S.C. § 1332, federal district courts have original
jurisdiction over civil actions between citizens of different states where the amount in
controversy exceeds $75,000.00, exclusive of interest and costs. 28 U.S.C. § 1332(a). The
statute “has been interpreted to demand complete diversity, that is, that no party share
citizenship with any opposing party.” Caudill v. N. Am. Media Corp., 200 F.3d 914, 916 (6th
Cir. 2000). The removing party bears the burden of establishing diversity jurisdiction.
Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
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III.
A.

Timeliness of Removal

Defendant Kakavand asserts that removal was effective when the notice of removal
and notice filing were filed on January 28, 2013. He also argues that removal was timely
because it did not become apparent until he received billing records on January 16, 2013, that
the amount in controversy exceeded $75,000.00. [Record No. 5, p. 3] Title 28 of the United
States Code, Section 1446(b), governs the timeliness of removal. This statutory section
“provides a two-step test for determining whether a defendant timely removed a case.”
Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992); see also 28 U.S.C.
§ 1446(b)(1), (3). Under a plain reading of the statute, “if the case stated by the initial
pleading is removable, then notice of removal must be filed within thirty days from the
receipt of the initial pleading by the defendant.” Chapman, 969 F.2d at 161. However, if the
case stated by the initial pleading is not removable, the notice of removal may be filed within
thirty days of the receipt of any amended pleading or other paper from which the defendant
can first ascertain that the case is removable. See 28 U.S.C. § 1446(b)(3).
The time requirements for the removal of civil cases “is a strictly applied rule of
procedure and untimeliness is a ground for remand so long as the timeliness defect has not
been waived.” Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir. 1993) (quotation marks and citations
omitted). “[I]n the interest of comity and federalism, federal jurisdiction should be exercised
only when it is clearly established, and any ambiguity regarding the scope of § 1446(b)
should be resolved in favor of remand to the state courts.” Brierly v. Alusuisse Flexible
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Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999). A defendant’s failure to comply with
these temporal requirements acts as barrier to federal jurisdiction.
Here, Dr. Kakavand was served with the summons and a copy of the Complaint on
December 27, 2012.2 On January 28, 2013, he filed the initial Notice of Removal. [Record
No. 3, pp. 1-2] However, the Court ordered that the Notice of Removal be stricken because
it contained information that violated the Court’s redaction policy regarding the names of
minor children. Dr. Kakavand was given ten days from January 29, 2013, to cure these
deficiencies. [Record No. 2] The same day, on January 29, 2013, he re-filed a notice of
removal that complied with the Court’s redaction policy. [Record No. 3]
As an initial matter, the parties mistakenly state that January 28, 2013 was the thirtieth
day after December 27, 2012.3 In fact, January 28, 2013, was thirty-two days after the date
Dr. Kakavand was properly served. Regardless, this is of no consequence because the thirtyday period for filing the notice of removal did not commence until January 16, 2013, when
Dr. Kakavand’s counsel received documentation demonstrating that the case was removable.

2

The date of service on KMSF is disputed, but it occurred sometime after December 27, 2012.

3
The plaintiff contests the timeliness of Dr. Kakavand’s Notice of Removal, arguing that Dr.
Kakavand’s January 29, 2013 filing was one day past the thirty-day deadline. [Record No. 4-1, p. 2] The
plaintiff’s argument is predicated on the assertion that the Court’s January 29, 2013 Order, striking the initial
Notice of Removal, rendered it untimely. The plaintiff, however, misunderstands the effect of the Court’s
January 29, 2013 Order, and her argument on this point is without merit. The Court allowed Dr. Kakavand
ten days to file an amended notice of removal that corrected a clerical issue of redacting the name of the
minor child. He complied with the Court’s Order the same day. The case was not dismissed; rather, an
amendment was allowed. In short, Dr. Kakavand’s compliance with the Court’s Order would not have
rendered the Notice of Removal untimely. The plaintiff provides to no authority to the contrary.

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As indicated above, 28 U.S.C. § 1446(b)(3) provides that if “the case stated by the
initial pleading is not removable, a notice of removal may be filed within 30 days after
receipt by the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which
is or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). The Sixth Circuit
instructs that § 1446(b)(3) “starts the thirty-day period running from the date that a defendant
has solid and unambiguous information that the case is removable.” Walker v. Phillip Morris
USA, Inc., 443 F. App’x 946, 950 (6th Cir. 2011) (quotation marks and citations omitted).
Thus, as many courts have recognized, when a complaint is silent regarding the amount of
damages, as is the case here, “the defendant should make an independent inquiry as to the
extent of damages or run the risk of remand when the plaintiff” provides information
indicating that the amount of controversy is below the jurisdictional limit. Cole v. Great
Atlantic & Pacific Tea Co., 728 F. Supp. 1305, 1309 (6th Cir. 1990); see also Adams v.
Bellsouth Telcoms, LLC, No. 12-60-GFVT, 2013 U.S. Dist. LEXIS 2449, at *7-8 (E.D. Ky.
Jan. 8, 2013).
The district court in Adams was recently confronted with the same issue now before
the Court. The Adams court concluded that, in light of the fact that Kentucky law prohibits
ad dammnum clauses, the thirty-day deadline of § 1446(b) did not begin to run until the
defendant received a letter from opposing counsel, stating that the plaintiff’s medical bills
totaled $78,842.63. Id. at *9-10 (“It was at this point that the thirty day window to file a
notice of removal opened [the defendant] under § 1446(b)(3).”).
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Much like in Adams, the Complaint is silent concerning the amount in controversy.
In an effort to ascertain whether the jurisdictional minimal limitation was met for the amount
in controversy, Dr. Kakavand’s counsel requested that the University of Kentucky (“UK”)
and KMSF provide him with copies of MJL’s medical billing records. It was not until
January 16, 2013, when counsel for Dr. Kakavand received these bills that it was established
that MJL had incurred over $112,000.00 in medical expenses associated with his alleged
injuries. These documents for the first time provided “solid and unambiguous information”
that the amount in controversy exceeded $75,000.00. Walker, 443 F. App’x at 950.
Thus, because § 1446(b)(3) allows the filing of a notice of removal within thirty days
after the receipt of a document “from which it may first be ascertained” that the case is
removable, Dr. Kakavand’s Notice of Removal was timely filed. The thirty-day time period
in which Dr. Kakavand could timely file a notice of removal began on January 16, 2013. The
Notice of Removal filed on January 28, 2013 is within the thirty-day window contemplated
by the relevant statutory section. Thus, Dr. Kakavand’s removal of this action from the
Fayette Circuit Court was timely.
B.

Rule of Unanimity

“[T]here is a rule of unanimity that has been derived from the statutory language
prescribing the procedure for removing a state action to federal court, 28 U.S.C. § 1446.”
Loftis v. UPS, 342 F.3d 509, 516 (6th Cir. 2003). This rule “requires that in order for a
notice of removal to be properly before the court, all defendants who have been served or
otherwise properly joined in the action must either join in the removal, or file a written
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consent to the removal.” Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533
(6th Cir. 1999). The failure of all defendants to join in removal creates a defect in removal
procedure within the meaning of § 1447(c). Balazik v. County of Dauphin, 44 F.3d 209, 213
(3d Cir. 1995); see also Loftis, 342 F.3d at 516.
Contrary to the plaintiff’s assertion, KMSF properly consented to removal through the
unambiguous statement of counsel in the Notice of Removal. [See Record No. 3, p. 3 ¶ 11.]
While other circuits apply more stringent requirements, the Sixth Circuit allows a less formal
means of satisfying the rule of unanimity but it still requires some indicia of consent by the
other defendants. Harper v AutoAlliance Int'l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004)
(removal notice complied with “rule of unanimity” under § 1446 where one defense counsel
signed notice pursuant to Fed. R. Civ. P. 11 and correctly represented concurrence by another
defense counsel). Here, the Notice of Removal states, “Defendant KMSF has not yet been
served, but in the event it is served, the undersigned counsel will represent KMSF in this
action. KMSF hereby consents through counsel to the removal of this action, without
waiving any defenses and objections based on insufficiency of service of process or lack of
personal jurisdiction.” [Record No. 3, p. 3 ¶ 11] The statement by counsel that KMSF, if
properly served, consented to the removal of this action is sufficient under Sixth Circuit
precedent to satisfy the rule of unanimity.4 Harper, 392 F.3d at 201-02.

4
Because the Court has determined that counsel’s statement in the Notice of Removal satisfied the rule
of unanimity, the Court need not address the defendants’ argument that at the time of the Notice of Removal
KMSF still had not been properly served. Nonetheless, § 1446(b)(2)(B) indicates that a defendant who has
not properly been served need not join in or consent to removal. See, e.g., Milter v. Wright Med. Group, Inc.,
No. 11-CV-11353, 2011 U.S. Dist. LEXIS 105692, at *6-7 ( E.D. Mich. Sept. 19, 2011) (“Under a well

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C.

Amount-in-Controversy Requirement

A party seeking to invoke federal court jurisdiction has the burden of demonstrating
by competent proof that the amount-in-controversy requirement is met. Hertz Corp. v.
Friend, 559 U.S. 77, 96 (2010); see also Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
572 (6th Cir. 2001) (noting that “[t]his standard does not place upon the defendant the
daunting burden of proving, to a legal certainty, that the plaintiff’s damages are not less than
the amount-in-controversy requirement” (internal quotation marks omitted)). Generally, the
amount in controversy can be established by reference to the allegations in the complaint.
Additionally, in the Sixth Circuit, it is generally agreed that “the amount in controversy
should be determined from the perspective of the plaintiff, with a focus on the economic
value of the rights he seeks to protect.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369,
376-77 (6th Cir. 2007) (quotation marks and citations omitted). However, if the amount of
the plaintiff’s damages are unclear from the state court complaint, the defendant must set
forth sufficient underlying facts to show that it is “more likely than not that the plaintiff’s
claims will generate damages in excess of $75,000.” Davis v. Progressive Direct Ins. Co.,
No. 08-369-JBC, 2009 U.S. Dist. LEXIS 5640, at *7 (E.D. Ky. Jan. 26, 2009) (internal
quotation marks omitted); see id. at *5-6.

known exception to the unanimity requirement, a defendant who has not been served with process at the time
the notice of removal is filed need not join in the notice of removal.”) (internal citations omitted).

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Although the Complaint is silent regarding the amount of damages,5 the Notice of
Removal indicates that the amount in controversy exceeds $75,000.00. [Record No. 3, pp. 23 ¶¶ 8-10] In pertinent part, the Notice of Removal states:
In this case, the amount in controversy exceeds $75,000. As Plaintiff’s billing
records show, Plaintiff’s past medical expenses from the University of
Kentucky alone are in excess of $112,000. (See University of Kentucky billing
records, Exhibit 2.) Plaintiff also seeks damages for pain and suffering and for
future medical expenses, as well as punitive damages. Moreover, Plaintiff, a
minor child, alleges that he has suffered permanent impairment of the ability
to earn money. By a preponderance of the evidence, Plaintiff’s claim for
damages is in excess of $75,000.
[Id., p. 3 ¶ 10]
While the argument was not made in her motion to remand and initial brief, the
plaintiff raises the additional argument in her reply brief that Dr. Kakavand’s evidence of the
amount in controversy should be disregarded and the case remanded for failure to provide
proof that the minimal amount-in-controversy requirement has been met. [Record No. 6, pp.
1-5] The plaintiff contends that Dr. Kakavand’s only evidentiary support that the amount in
controversy exceeds the jurisdictional amount are MJL’s medical bills, and that these medical
bills are “squarely within the definition of protected health information” under the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”). [Id., pp. 1, 2] The
plaintiff maintains that the manner by which Dr. Kakavand’s counsel obtained this protected

5
In accordance with Kentucky law, the Complaint does not include an ad damnum clause identifying
the specific amount in damages sought. Ky. R. Civ. P. 8.01(2).

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health information was an “egregious violation” of HIPAA and Rules 45 and 26 of the
Federal Rules of Civil Procedure.6 [Id.]
The plaintiff, however, misconstrues Dr. Kakavand’s averments concerning the
amount in controversy. While he relies on certain medical bills of MJL, these records are not
the only support provided in furtherance of his contention that the amount in controversy
exceeds $75,000.00. He notes that this is a medical malpractice action where the plaintiff
is not only seeking compensation for past medical expenses but also future medical expenses
for MJL’s alleged on-going medical condition, as well as punitive damages. See, e.g.,
Johnson v. Fifth Third Bank, Inc., 476 B.R. 493, 497 (W.D. Ky. 2012) (“Claims for punitive
damages should be included in the amount-in-controversy calculation, ‘unless it is apparent
to a legal certainty that such cannot be recovered.’”) (quoting Hayes, 266 F.3d at 572).
Additionally, Dr. Kakavand asserts that MJL, a minor child, is seeking damages for an

6
As noted by the plaintiff, 45 C.F.R. § 164.512(e) governs the disclosure of HIPAA-protected
information pursuant to judicial proceedings. This statutory provision allows for the disclosure of protected
information in certain circumstances. [Record No. 6, p. 3 (citing 45 C.F.R. § 164.512(e))] One such
circumstance under which disclosure is permissible is when either the party requesting the information or the
healthcare provider has made a reasonable efforts to notify the individual of the disclosure prior to the
disclosure being made. See 45 C.F.R. §§ 164.512(e)(1)(ii)(A), (e)(1)(iii) & (e)(1)(iv).
The affidavit provided by the plaintiff’s counsel, however, only indicates that “[u]pon information
and belief, neither counsel for Defendant Kakavand nor the University made any attempt to seek Plaintiff’s
permission to release medical information, or to notify Plaintiff’s counsel of the request . . . .” [Record No. 61, p. 1] This averment falls short of properly alleging a HIPAA violation. Moreover, the Court notes that
the plaintiff was fully aware that Dr. Kakavand and his counsel (who is also the counsel for KMSF, the entity
that released the billing records) were in possession of these records since at least January 29, 2013, when
Dr. Kakavand both referenced the billing records in the Notice of Removal and attached them thereto.
Despite this, the plaintiff did not raise this allegation of HIPAA violations until she filed her reply brief to
her motion to remand. Nonetheless, even if the Court found this disclosure to be a HIPAA violation (or to
have even been properly alleged as such), the plaintiff cites to no authority that dictates that such information
must be stricken, or that the Court may not consider it in determining if the jurisdictional amount-incontroversy requirement has been met.

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alleged permanent cardiac impairment resulting in the loss of the child’s ability to earn
money in the future. In short, Dr. Kakavand relies on more than the alleged improperlyobtained medical bills of MJL to support his contention that the amount in controversy
exceeds $75,000.00.
The Court concludes that Dr. Kakavand has met his burden by demonstrating that the
minimal jurisdictional amount-in-controversy requirement is exceeded. See Roe v. Michelin
N. Am., Inc., 613 F.3d 1058, 1061-62 (11th Cir. 2010) (noting that courts may make
“reasonable deductions, reasonable inferences, or other reasonable extrapolations” from the
pleadings to determine whether it is facially apparent that the amount-in-controversy
requirement is met); see also Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.
1999) (holding that when determining the amount in controversy, the court may look to the
nature of the injuries alleged and finding that a complaint alleged damages greater than
$75,000.00 when the plaintiff suffered congestive heart failure and requiring a six-day
hospital stay).
D.

Fraudulent Joinder

Finally, Dr. Kakavand argues that removal was appropriate because the plaintiff lacks
any colorable claim against KMSF. [Record No. 5, pp. 12-16] He contends that KMSF was
fraudulently joined and its citizenship may be disregarded for diversity purposes. [Id.] An
exception to the complete-diversity requirement exists when a non-diverse defendant has
been fraudulently joined. See Coyne, 183 F.3d at 493. (“[The Sixth Circuit] has recognized
that fraudulent joinder of non-diverse defendants will not defeat removal on diversity
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grounds.”). Fraudulent joinder exists, and the case need not be remanded, if there is no
“reasonable basis” to expect that the plaintiff’s claims against the non-diverse defendant
could succeed under state law. Id. (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940,
949 (6th Cir. 1994)). Although the plaintiff’s actual motive is irrelevant to the fraudulentjoinder inquiry, Jerome-Duncan, Inc. v. Auto-By-Tel Mktg. Corp., 176 F.3d 904, 907 (6th
Cir. 1999), this test serves as “a proxy for establishing the plaintiff’s fraudulent intent. If the
plaintiff has no hope of recovering against the non-diverse defendant, the court infers that
the only possible reason for the plaintiff’s claim against [that defendant] was to defeat
diversity and prevent removal.” Smith v. SmithKline Beecham Corp., No. 11-56-ART, 2011
U.S. Dist. LEXIS 75951, at *14 (E.D. Ky. July 13, 2011) (SmithKline Beecham II) (citation
and internal quotation marks omitted).
In deciding whether a defendant has been fraudulently joined, the Court “must resolve
all disputed questions of fact and ambiguities in the controlling . . . state law in favor of the
nonremoving party,” and “[a]ll doubts as to the propriety of removal are resolved in favor
of remand.” Coyne, 183 F.3d at 493 (omission in original) (internal quotation marks
omitted). If a determination cannot be made from the face of the complaint, the Court may
“pierce[] the pleadings to consider summary-judgment-type evidence.” Walker v. Philip
Morris USA, Inc., 443 F. App’x 946, 953 (6th Cir. 2011) (internal quotation marks omitted).
However, the Court must be careful not to “step[] from the threshold jurisdictional issue [of
fraudulent joinder] into a decision on the merits.” Boyer v. Snap-On Tools Corp., 913 F.2d
108, 112 (3d Cir. 1990); see also Walker, 443 F. App’x at 954 (holding that the proper
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standard for evaluating claims of fraudulent joinder is akin to that of a Rule 12(b)(6) motion
to dismiss, and is arguably even more deferential); Cordle v. Merck & Co., 405 F. Supp. 2d
800, 803 (E.D. Ky. 2005) (same). The removing party bears the burden of establishing
fraudulent joinder. Alexander, 13 F.3d at 949; see also Parker v. Crete Carrier Corp., 914
F. Supp. 156, 159 (E.D. Ky. 1996) (“Claims of fraudulent joinder must be asserted with
particularity and supported by clear and convincing evidence.”). And this burden “‘is a
heavy one.’” Walker, 443 F. App’x at 953 (quoting Travis v. Irby, 326 F.3d 644, 649 (5th
Cir. 2003)).
Dr. Kakavand argues that there is “no colorable basis for predicting that Plaintiff
could recover from KMSF.” [Record No. 5, p. 13] He contends that KMSF can neither be
held directly liable or vicariously liable for his alleged medical negligence. Under Kentucky
law, it is well-settled that the elements of a medical malpractice action are no different than
any other negligence action, thus requiring the plaintiff to demonstrate: duty, breach,
causation, and injury. Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120
S.W.3d 682, 687 (Ky. 2003); see also Harless v. United States, No. 07-141-GFVT, 2008
U.S. Dist. LEXIS 109112, at *11-13 (E.D. Ky. Nov. 26, 2008). “Duty, the first element,
presents a question of law,” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003), and
if no duty exists, there can be no actionable negligence. Jenkins v. Best, 250 S.W.3d 680,
(Ky. App. 2007) (quotation marks and citations omitted). However, if such a duty does exist,
a medical malpractice plaintiff must “prove that the treatment given was below the degree
of care and skill expected of a reasonably competent practitioner and that the negligence
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proximately caused [the plaintiff’s] injury.” Grubbs, 120 S.W.3d at 694 (Keller, J.,
concurring, in part, dissenting, in part) (quotation marks and citations omitted); see also
Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982).
The plaintiff’s Complaint states that “at all times herein [Dr. Kakavand] was the agent,
servant and employee of [KMSF],” and that KMSF “provided medical services to [MJL]
through its agents, servants and employees or ostensible agents, servants, and employees,
including but not limited to [Dr. Kakavand].” [Record No. 3-1, p. 2 ¶¶ 2-3] Further, the
plaintiff alleges that “[KMSF] individually and through its actual or ostensible agents,
servants and employees, including but not limited to [Dr. Kakavand] was negligent in the
medical care it provided to [MJL] and is vicariously and directly liable for the acts and
omissions of those actual or ostensible agents.” [Id., pp. 2-3 ¶ 7] The plaintiff alleges that
as a result of the defendants’ negligence, MJL sustained serious personal injuries. [Id. p. 3
¶ 8]
In assessing claims of fraudulent joinder, the potential for legal liability “must be
reasonable, not merely theoretical.” Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 312 (5th Cir. 1992). And, as noted above, it is proper for courts to
pierce the pleadings and consider summary-judgment-type evidence, such as affidavits
provided by the parties, in determining the validity of the plaintiff’s joinder of a non-diverse
defendant. See Walker, 443 F. App’x at 953; see also Casias v. Wal-Mart Stores, Inc., 695
F.3d 428, 433 (6th Cir. 2012). Here, Dr. Kakavand provides an affidavit of Darrell A.
Griffith, the Executive Director for business operations for KMSF, in support of his
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contention that KMSF can neither be found directly nor vicariously liable. Griffith states that
KMSF does not employ physicians affiliated with the UK or UK Healthcare, does not pay
their salaries, and does not have the authority to direct, supervise, or otherwise exercise
control over the actual practice of medicine by physicians affiliated with UK or UK Health
Care, including Dr. Kakavand. [Record No. 3-3, pp. 1-2 ¶¶ 3-5, 7] He also indicates that
KMSF neither practices medicine nor provides medical services. [Id., ¶ 6] Instead, “KMSF
provides billing and other administrative services relating to the services of more than 600
physicians and other health care providers affiliated with the [UK’s] health care system.”
[Id., ¶ 2]
Dr. Kakavand asserts that these averments demonstrate that KMSF cannot be held
directly liable because it is not a hospital or medical practice, does not provide medical
services through it employees, and has no control over the practice of medicine. [Record
No. 5, p. 14] Further, he contends that KMSF cannot be vicariously liable because he was
not an employee of KMSF when he treated MJL, and because KMSF did not exercise control
over him. Dr. Kakavand also provides a sworn affidavit, stating that when he treated MJL
he was “an employee of the University of Kentucky” as well as a photocopied excerpt of his
2012 W-2 tax record which lists the University of Kentucky under the “Employer” section
of the form.7 [See Record No. 5-2, p. 1 ¶ 3; Id., p. 3.]

7
Dr. Kakavand has also provided the Court with two state court orders, which he contends demonstrate
that KMSF cannot be liable either directly or vicariously. [Record No. 5-3, pp. 1-5] The Fayette Circuit Court
order in Brahan v. Rock, et al., states that “all claims asserted against KMSF are dismissed with prejudice
because the Court finds that there is an insufficient basis to hold KMSF vicariously liable for the alleged
negligence of the defendant-physicians. The second Fayette Circuit Court order from McCann, et al. v.

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The plaintiff contends “Kentucky law is clear that a practice group, hospital, or other
entity governing physicians cannot avoid liability just because the entity itself does not
practice medicine.” [Record No 4-1, p. 7] Additionally, the plaintiff alleges that KMSF is
also vicariously liable for the actions of Dr. Kakavand. [Record No. 4-1, p. 8-10 (quoting
King v. Shelby Rural Elec. Co-op. Corp., 502 S.W.2d 659, 664 (Ky. 1973) (“The right to
control is one of the important tests used to distinguish between the master-servant and the
employer-independent contractor relationship.”))] In support of her contention that KMSF
could be held either directly or vicariously liable for the claims of medical negligence, she
cites a number of cases where hospitals and professional medical entities have been held
liable for the medical negligence of its staff and physicians under such theories as negligent
hiring and retention, negligent supervision, and negligent credentialing. See, e.g., Willaims
v. St. Claire Med. Cntr., 657 S.W.2d 590 (Ky. App. 1983).
While the authority the plaintiff cites is a correct assessment of Kentucky law, the
plaintiff’s Complaint is devoid of any comparable or analogous factual allegations
concerning KMSF. [See Record No. 4-1, pp. 7-8.] Each of the cases relied on by the
plaintiff is distinguishable from the underlying facts of this case for the simple reason that
the services KMSF provides are in no way implicated by the plaintiff’s claim of medical
negligence. After Dr. Kakavand put forth evidence demonstrating that KMSF only provides

Bradley, et al., indicates that the defendants’ motion to dismiss or for summary judgment is granted to a
number of the defendants, one of which is KMSF. These orders are neither dispositive nor controlling. The
question presented is whether, in this case, the plaintiff has made sufficient factual claims to establish a valid
cause of action against KMSF if those facts are subsequently proven.

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billing and administrative services – not medical services – and that it was not the employer
of Dr. Kakavand, the plaintiff offers no proof to support any of her claims of agency.
Mere allegations are insufficient under these circumstances where the defendant has
shown evidence of no employment or agency relationship between the parties, and the
plaintiff’s failure to provide contravening evidence renders the defendant’s evidence
uncontested. See, e.g., Faucett v. Ingersoll-Rand Mining & Mach. Co., 960 F.2d 653, 654-55
(7th Cir. 1992) (in a product liability action, finding that fraudulent joinder was properly
established when the non-diverse defendant provided an uncontradicted affidavit stating that
he nothing do with the machine at issue). Thus, when the defendant comes forth with
evidence supporting his claims of fraudulent joinder, the plaintiff must provide the Court
with some factual basis, evidence, or scenario that would exhibit a reasonable possibility that
the defendant could be held liable of the claims alleged. Legg v. Wyeth, 428 F.3d 1317, 1322
(11th Cir. 2005) (“When the Defendants’ affidavits are undisputed by the Plaintiffs, the court
cannot then resolve the facts in the Plaintiffs’ favor based solely on the unsupported
allegations in the Plaintiffs’ complaint.”); see also Boss v. Nissam N. Am., 228 F. App’x 331,
336 (4th Cir. 2007); Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406, 409 (10th Cir.
1958) (finding that corporate officers were fraudulently joined where uncontradicted
affidavits exhibited that they had nothing to do with the assembly and sale of an allegedly
defective bicycle); Culpepper v. Stryker Corp., No. 2:12-cv-767-MEF, 2013 U.S. Dist.
LEXIS 130380, at *23-24 (M.D. Ala. Sept. 12, 2013).

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In short, the plaintiff has failed to provide the Court with any evidence that disavows
the evidence provided by Dr. Kakavand that KMSF was neither the employer, nor had any
type of control over Dr. Kakavand or the practice of medicine at UK or UK Healthcare. The
evidence before the Court demonstrates that KMSF only provides billing services and other
administrative duties for UK physicians. The plaintiff has offered nothing to refute this
evidence. Moreover, the plaintiff’s claims are not based on billing or administrative issues;
rather, she is pursuing claims of medical negligence concerning an alleged failed medical
procedure performed by Dr. Kakavand. As noted above, to establish a claim of medical
negligence under Kentucky law, there must have first existed a relationship between KMSF
and M.L.J. that gave rise to a duty being owed to M.L.J. by KMSF. See Reams v. Stutler,
642 S.W.2d at 588. However, the uncontested evidence before the Court demonstrates that
no such relationship existed, and Dr. Kakavand has demonstrated that KMSF’s duties of
performing billing services and administrative services is not connected with the alleged
negligently performed medical procedure. See Jenkins, 250 S.W.3d at 694.
Again, the only evidence before the Court indicates that KMSF has no control over
the practice of medicine by physicians at UK or UK Healthcare. It is not a hospital, medical
practice, or physician group. And it neither employed nor exercised any control over UK
physicians, including Dr. Kakavand. See Home Ins. Co. v. Cohen, 357 S.W.2d 674, 676 (Ky.
1962) (“[T]o impose liability upon the master for either a civil or criminal wrong, the proof
must show that the act is one that the agent was employed to perform, or that it accrued
substantially within the authorized time and space limits of the employment or that the
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offender was actuated at least in part by a purpose to serve the master.”). Based on the
information presented to the Court, there exists no possibility that Kentucky law would
recognize a claim of medical negligence against KMSF.
As the Eleventh Circuit succinctly explained, “[i]n considering possible state law
claims, possible must mean ‘more than such a possibility that a designated residence can be
hit by a meteor tonight. That is possible. Surely, as in other instances, reason and common
sense have some role.’” Legg v. Wyeth, 428 F.3d 1317, 1325 n. 5 (11th Cir. 2005) (quoting
Braden v. Wyeth, No. 04-PT-235-E, 2005 U.S. Dist. LEXIS 25243, at *3 (N.D. Ala. June 30,
2005)). Faced with the unopposed facts provided by Dr. Kakavand, compared to the
unsupported allegations of the plaintiff, the Court cannot conclude that there is any
reasonable possibility that the plaintiff could establish a colorable medical negligence claim
against KMSF under Kentucky law. And because the plaintiff has failed to offer anything
to contradict the evidence provided by Dr. Kakavand, there are simply no contested issues
of fact or law which the Court must consider. See Coyne, 183 F.3d at 493 (noting that when
weighing validity of assertion of joinder, the Court “must resolve all disputed questions of
fact and ambiguities” in the state law in favor of the non-removing party (emphasis added)).
Based on the foregoing, Dr. Kakavand has sufficiently demonstrated that KMSF was
fraudulently joined in this action.
IV.
For the reasons discussed above, it is hereby
ORDERED that the plaintiffs’ motion to remand [Record No. 4] is DENIED.
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This 27th day of September, 2013.

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