Brandenburg v. Stanton Health Facilities, L.P.
MEMORANDUM OPINION & ORDER: (1) DENYING pla's 7 MOTION to Amend/Correct ; (2) DENYING pla's 6 MOTION to Remand. Signed by Judge Danny C. Reeves on 10/2/14.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
STANTON HEALTH FACILITIES, L.P.,
Civil Action No. 5: 14-183-DCR
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This matter is pending for consideration of Plaintiff Juanita Brandenburg’s motion to
file an Amended Complaint to join Tom Davis and Heather Ratliff as defendants. [Record
No. 7] The plaintiff simultaneously filed a motion to remand on the grounds that joining
Davis and Ratliff would destroy diversity and divest this Court of jurisdiction. [Record No.
6] For the reasons outlined below, the plaintiff’s motion to file an Amended Complaint and
motion to remand will be denied.
The plaintiff’s original Complaint was filed on April 21, 2014, in the Powell Circuit
Court. [Record No. 1-1] Brandenburg claims that Defendant Stanton Health Facilities, L.P.,
negligently caused injuries during her time at the Stanton Nursing and Rehabilitation Center
(May 29, 2012, through March 22, 2014). [Id., p. 2] The alleged injuries include severe
weight loss due to malnutrition, eschars, pressure ulcers, dehydration, improper cleansing,
failure to diagnose heart conditions, sepsis, urinary tract infections, and diseased teeth and
gums. [Id., pp. 2–7] The Complaint further claims violations of KRS § 216.515, 902 KAR
20:300, 902 KAR 20:048, KRS § 530.080, breach of contract, intentional/reckless infliction
of emotional distress, and Kentucky’s Consumer Protection Act. [Id., p. 7–17] On May 9,
2014, the defendant removed the case to this Court based on federal diversity jurisdiction.
[Record No. 1]
On May 16, 2014, Brandenburg filed a motion for leave to amend the Complaint.
[Record No. 7]
The primary changes are the addition of Thomas Davis, the alleged
Administrator of Stanton Nursing and Rehabilitation Center, and Heather Ratliff, the alleged
Director of Nursing at Stanton Nursing Rehabilitation Center, as defendants.
specifically, the Amended Complaint includes allegations that Davis and Ratliff were
negligent and grossly negligent in providing care.
She also seeks to recover punitive
damages from the parties she seeks to add as defendants. [Record No. 7-2, pp. 21–26]
Along with the motion to amend, the plaintiff filed a motion to remand the case to the Powell
Circuit Court. [Record No. 6] As grounds, Brandenburg alleges that: (i) both Davis and
Ratliff are citizens of Kentucky, who, if joined, would destroy the diversity jurisdiction; and
(ii) the original defendant failed to identify the names and domiciles of each partner of
Stanton Health Facilities, L.P., as required to establish complete diversity.1 [Record No. 6-1,
In the Notice of Removal, the defendant stated that it is a citizen of Texas. [Record No. 1, pp. 1–
2] Further, in its reply to the plaintiff’s motion for remand, the defendant explained that the general
partner for Stanton Health Facilities, L.P., is Stanton Health Facilities GP, LLC, which is a limited
liability company organized under Texas law, with Texas as its domicile and principle place of business.
[Record No. 11, p. 2–3] The limited partner for Stanton Health Facilities, L.P., is Thomas Scott, a
resident and citizen of Texas, domiciled in Texas. [Id.] Therefore, diversity of citizenship exists with
respect to the case as originally removed to this Court..
Amendments to pleadings are governed by Federal Rule of Civil Procedure 15, which
allows a plaintiff to amend a complaint “once as a matter of right” within twenty-one days of
a defendant’s answer or motion to dismiss under Rule 12. Fed. R. Civ. P. 15(a)(1)(b). As a
general rule, courts do not have a great deal of discretion to deny timely filed motions to
amend complaints. However, Congress allows the federal courts to exercise discretion in
allowing amendments when the amendment would divest the court of jurisdiction through
the joinder of additional parties. 28 U.S.C. § 1447(e) (“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.”); see also
Collins ex rel Collins v. Nat’l General Ins. Co., No. 10-13344, 2010 WL 4259949 (E.D.
Mich. Oct. 25, 2010).
The Sixth Circuit has provided little guidance regarding this statutory section, but the
courts in this district generally use the four Hensgens factors.
See Cooper v. Thames
Healthcare Group, LLC, No. 13-14-GFVT, 2014 WL 941925, at *2 (E.D. Ky. Mar. 11,
2014); Premium Fin. Grp., LLC v. MPVF LHE Lexington LLC, No. 5:13-CV-362-KKC,
2014 WL 112308, *4 (E.D. Ky. Jan. 9, 2014) (citing Bridgepointe Condos, Inc. v. Integra
Bank Nat’l Ass’n, No. 08-475-C, 2009 WL 700056, at *2 (W.D. Ky. Mar. 13, 2009)); Lester
v. Extendicare, Inc., No. 6:13-CV-21, 2013 WL 3781300, at * 3 (E.D. Ky. July 18, 2013).
These factors include: (i) the extent to which the purpose of the amendment is to defeat
federal jurisdiction; (ii) whether the plaintiff has been dilatory in seeking amendment; (iii)
whether the plaintiff will be significantly injured if amendment is not allowed; and (iv) any
other equitable factors. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). The
first factor is often of “paramount importance” because the ultimate question is whether the
primary purpose of the proposed joinder is to divest the federal forum of jurisdiction. See
Bridgepointe Condos, Inc., 2009 WL 700056, at *2; City of Cleveland v. Deutsche Bank
Trust Co., 571 F. Supp. 2d 807, 824–25 (N.D. Ohio 2008); J. Lewis Cooper Co. v. Diageo N.
Am., Inc., 370 F. Supp. 2d 613, 618 (E.D. Mich. 2005).
Brandenburg claims that since filing the Complaint it has been discovered, through
review of records, that her mistreatment was much worse than she originally thought.2
[Record No. 9, pp. 2–3] As a result of this new information, the plaintiff asserts “that she
had claims against Davis and Ratliff for negligence and gross negligence and could seek
punitive damages relating to their breaches of care.” [Id., p. 7] As noted in Cooper, 2014
WL 941925, at *3, this explanation would be more persuasive if the plaintiff had not known
of the existence of Davis and Ratliff prior to filing the Complaint. Brandenburg does not
contend that she was unaware of either Davis or Taylor prior to filing the Complaint. In fact,
in the filing in support of her motion to amend, Brandenburg states that “Davis and Ratliff’s
neglect of Plaintiff was worse than previously believed,” [Record No. 9, p. 7], and that
“Davis and Ratliff’s actions and/or inactions were far worse than the Plaintiff realized at the
time the Complaint was filed.”
[Id., p. 3]
These statements make it clear that the
Due to the lack of capacity of the plaintiff, her daughter and counsel have taken an increased role
in fact gathering and bringing the legal claims in this case. [Record No. 9, p. 3]
Brandenburg was aware of the identity of Davis and Ratliff, and their roles at the Stanton
Nursing and Rehabilitation Center.
There is also evidence that the plaintiff’s daughter, Kay Brandenburg, had
complained to the administration at Stanton Nursing and Rehabilitation Center numerous
times regarding the care her mother was receiving in January of 2014. [Record No. 11, pp.
6–7] Further, the Complaint states that “Plaintiff’s family members repeatedly brought . . .
suspected urinary tract infections and infirmities to Defendant Nursing Home’s attention.”
[Record No. 1-1, p. 4] These exchanges demonstrate that, prior to any new information
discovered after filing the Complaint, Brandenburg had already acted on her displeasure with
the administration. Additionally, even if Brandenburg was not aware of the identities of
Davis and Ratliff, at the very least she could have included them as “Unknown Defendants”
in the Complaint. Despite these interactions, the plaintiff did not seek to join any member of
the administration until after removal.
Further, the motion to amend was filed simultaneously with a motion to remand,
based on the joinder of Davis and Ratliff. Such contemporaneous filings indicate a motive to
avoid federal jurisdiction. Cooper, 2014 WL 941925, at *4 (citing McGee v. State Farm
Mut. Auto. Ins. Co., 684 F. Supp. 2d 258, 264 (E.D. N.Y. 2009) (“The amended complaint
was filed contemporaneously with McGee’s motion to remand. The inference is all but
compelled that the complaint was amended with the deliberate purpose of divesting this
Court of jurisdiction.”)). Thus, these circumstances suggest that the reason for amending the
Complaint is to destroy federal jurisdiction. The first factor weighs in favor of the defendant.
The second factor concerns whether Brandenburg has been dilatory in seeking to
amend her Complaint. The plaintiff filed this action on April 21, 2014. [Record No. 1-1]
The defendant removed the case to this Court on May 9, 2014. [Record No. 1] One week
later, on May 16, 2014, Brandenburg filed her motions to remand and amend. [Record Nos.
6, 7] The plaintiff claims that she has not been dilatory, stating that other plaintiffs have
been found not to be dilatory where a longer period of time had passed. [Record No. 9, p. 9];
Premium Fin. Grp., 2014 WL 112308, at *4 (finding a plaintiff not dilatory where the
plaintiff “completed all steps of the process within a month of filing suit.”); Bridgepointe
Condos, Inc., 2009 WL 700056 (four months found not to be dilatory). She further states
that, since filing the Complaint, she has had more time to research and review the
voluminous medical records affecting this case. [Record No. 6-1, p. 5] Again, however,
these arguments would be more compelling if the plaintiff had not been aware of Davis and
Ratliff prior to bringing the action. As stated earlier, it is clear that Brandenburg was not
only aware of their identity, but had complained directly to the administration numerous
times. Based on these circumstances, the Court concludes that it is a neutral factor that
favors neither party in the present amendment/remand analysis.
The third factor involves whether the plaintiff will be significantly injured if the
amendment is not allowed. Brandenburg’s Amended Complaint seeks to assert identical
factual allegations for its claims of negligence, gross negligence, and punitive damages
against Davis and Ratliff in their individual capacity, stating that they failed to properly
oversee the care provided by the facility. The plaintiff claims that prejudice will occur
without amendment of the Complaint because, “Davis and Ratliff were . . . grossly negligent
in carrying out their duties, and as a result of that gross negligence, the Defendant would not
be liable under a theory of respondeat superior for any award of punitive damages.” [Record
No. 9, p. 13]; see also KRS § 411.184(3).
“Under the doctrine of respondeat superior, an employer can be held vicariously
liable for an employee’s tortious actions if committed in the scope of his or her
employment.” Papa John’s Int’l, Inc. v. McCoy, 244 S.W.3d 44, 56 (Ky. 2008). Here, the
plaintiff fails to allege conduct by Davis or Ratliff falling outside the scope of employment.
See Cooper, 2014 WL 941925, at *4. Instead, she re-alleges all allegations against the
defendant in her claims against Davis and Ratliff, but fails to provide any individual
circumstances that would suggest their actions were not taken in the course of employment.
Further, the plaintiff asserts that she has just become aware of the seriousness of the injuries
caused by the oversight of Davis and Ratliff after reviewing more records. [Record No. 12,
p. 7] In short, the injuries claimed in the Amended Complaint are all included in some form
in the original Complaint. [Record No. 1-1, pp. 2–7, Record No. 7-2, pp. 21–25]
The plaintiff also asserts prejudice because, if joinder is rejected, she will be forced to
bring her claims against Davis and Ratliff in a separate action in state court. [Record No. 9,
pp. 9–11] However, courts have found that this concern can be muted when it is determined
that the defendant is being joined simply as a way to defeat federal jurisdiction. See Sexton
v. G & K Services, Inc., 51 F. Supp. 2d 1311, 1314 (M.D. Ala. 1999); Hayden v. Acadian
Gas Pipeline System, No. CIV. A. 96-3612, 1997 WL 180380, at *3 (E.D. La. Apr. 10,
Accordingly, the third factor weighs in favor of denying the Complaint to be
Finally, the fourth factor concerns whether there are any other equitable factors that
merit amendment of the Complaint. The plaintiff cites Premium Financial Group for the
proposition that the defendant’s ties and economic benefit received from the state of
Kentucky should be considered in favor of its motion to amend. [Id., p. 13–14]; 2014 WL
112308, at *4. However, the holding in Premium Financial Group is distinguishable. There,
the plaintiff was attempting to add a non-diverse defendant corporation who was the actual
owner of the office property at issue. Premium Fin. Grp., 2014 WL 112308, at *1. Here,
however, Brandenburg is not seeking to join a new entity but two employees who were
already known to her prior to filing the Complaint.
Further, the defendant claims an
equitable interest in being assured freedom from potential local bias which would be cured
by federal jurisdiction. [Record No. 8, pp. 8–9] Courts have considered the defendant’s
“substantial interest in proceeding in a federal forum” when evaluating this factor.
Bridgepointe Condos, Inc., 2009 WL 700056 at *4.
The fourth factor also ways in favor of
denying the motion to amend the Complaint.
The majority of relevant factors indicate that the plaintiff’s main purpose in seeking
to amend her Complaint is to destroy federal jurisdiction. For the reasons outlined above, it
ORDERED as follows:
The Plaintiff’s Motion for Leave to Amend [Record No. 7] is DENIED; and
The Plaintiff’s Motion to Remand the Matter to the Powell Circuit Court
[Record No. 6] is DENIED.
This 2nd day of October, 2014.
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