Higgs v. Golden Gate National Senior Care, LLC et al

Filing 13

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 8/11/2017, re Defendant Renay Ann Adkins' 3 MOTION TO DISMISS, and Plaintiff's 8 MOTION to Remand.cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DEBBIE HIGGS, as Administratrix of
the Estate of Marvis Higgs, Deceased

PLAINTIFF
CIVIL ACTION NO. 3:17-cv-00192-CRS

v.
GOLDEN GATE NATIONAL SENIOR CARE, LLC
d/b/a GOLDEN LIVING;
GGNSC LOUISVILLE HILLCREEK, LLC
d/b/a GOLDEN LIVING CENTER – HILLCREEK;
GGNSC ADMINISTRATIVE SERVICES, LLC
d/b/a GOLDEN VENTURES;
GGNSC HOLDINGS, LLC
d/b/a GOLDEN HORIZONS;
GGNSC EQUITY HOLDINGS, LLC;
GGNSC EQUITY HOLDINGS II, LLC;
GOLDEN GATE ANCILLARY, LLC;
GGNSC CLINICAL SERVICES, LLC;
GPH LOUISVILLE HILLCREEK, LLC;
RENAY ADKINS, in her capacity as Administrator of
Golden Living Center – Hillcreek;and
JOHN DOES 1 THROUGH 5, UNKNOWN

DEFENDANTS

Memorandum Opinion
I.

Introduction
This matter is before the Court on the motion of Defendant Renay Adkins to dismiss all

claims against her under Federal Rule of Civil Procedure 12(b)(6), ECF No. 3. Plaintiff Debbie
Higgs, as Administratrix of the Estate of Marvis Higgs, responded, ECF No. 7. Adkins replied,
ECF No. 10.
Higgs also moved to remand the case to the Jefferson County, Kentucky Circuit Court,
ECF No. 8. Defendants Golden Gate National Senior Care, LLC, d/b/a Golden Living, GGNSC
Louisville Hillcreek, LLC d/b/a Golden Living Center – Hillcreek, GGNSC Administrative
Services, LLC, GGNSC Holdings, LLC, GGNSC Equity Holdings, LLC, GGNSC Equity

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Holdings II, LLC, Golden Gate Ancillary, LLC, GGNSC Clinical Services, LLC, GPH
Louisville Hillcreek, LLC, and Adkins (collectively, “Defendants”) responded. Higgs did not
reply.
Because these motions involve similar issues and the same facts, the Court will address
them in a single memorandum opinion and order. The Court will begin by considering Higgs’
motion to remand the case to the Jefferson County Circuit Court and then will address Adkins’
motion to dismiss the claims. For the reasons explained below, the Court will deny Higgs’
motion to remand the case to the Jefferson County Circuit Court. The Court will grant Adkins’
motion to dismiss the claims that are asserted against her.
II.

Background
A.

Allegations in the Complaint

Marvis Higgs was a resident of Golden Living Center – Hillcreek. Compl. ¶ 3, ECF No.
1-1. He lived at the facility between January 26, 2016 and February 4, 2016, excluding periods of
hospitalization. Id. Marvis Higgs was of unsound mind and looked to Defendants “for treatment
of his total needs for custodial, nursing, and medical care.” Id. ¶¶ 4, 22.
Because of Defendants’ alleged wrongful conduct, Marvis Higgs “suffered accelerated
deterioration of his health and physical condition beyond that caused by the normal aging
process.” Id. ¶ 26. For example, he suffered open blisters, sores, skin injuries, and infections. Id.
Defendants’ alleged wrongful conduct also caused Marvis Higgs “loss of personal dignity,
extreme pain and suffering, degradation, mental anguish, [and] disfigurement,” as well as his
death. Id. ¶¶ 26–27.
Higgs filed suit in the Jefferson County Circuit Court. She asserts claims of negligence,
medical negligence, and corporate negligence against Defendants, as well as a claim of

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administrator negligence against Adkins. Id. ¶¶ 58–65. She additionally asserts a wrongful death
claim against Defendants. Id. ¶¶ 66–69. Higgs seeks punitive and compensatory damages, and
costs and other appropriate relief. Id. ¶ 72.
B.

Procedural History

Defendants removed the case to this Court under the diversity statute, 28 U.S.C. § 1332.
Not. Removal 1, ECF No. 1. Defendants then filed an answer to Higgs’ claims. Answer 1, ECF
No. 2.
III.

Higgs’ Motion to Remand the Case to the Jefferson County Circuit Court
Higgs has moved to remand the case to the Jefferson County Circuit Court. Mot. Remand

1, ECF No. 8. Higgs asserts that both she and Adkins are domiciled in Kentucky and thus that
there is not complete diversity. Mem. Supp. Mot. Remand 3, ECF No. 8-1. Defendants, however,
contend that Adkins was fraudulently joined to prevent removal to this Court. Resp. Opp. Mot.
Remand 1–3, ECF No. 11. Defendants explain that Higgs cannot assert a colorable claim against
Adkins because she was “never employed at the nursing home facility at any point during Marvis
Higgs’ residence.” Id. at 3. As part of her motion to dismiss, which Defendants incorporate in
their response to the motion to remand, id. at 2., Adkins includes an affidavit in which she states
that she served as an administrator of Golden Living Center – Hillcreek between April 7, 2014
and January 19, 2016, leaving five days before Marvis Higgs became a resident of the facility.
See Adkins Aff. 1, ECF No. 3-2. Higgs does not appear to dispute that Adkins was not employed
by Golden Living Center – Hillcreek while Marvis Higgs was a resident of the facility.1

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In her response to Adkins’ motion to dismiss, Higgs acknowledges that Adkins was not
employed by Golden Living Center – Hillview while Marvis Higgs was a resident, writing
“Marvis Higgs entered the facility only days after Ms. Adkins left.” Resp. Opp. Mot. Dismiss 3,
ECF No. 7.
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The removal statute, 28 U.S.C. § 1441(a), permits a party to remove a case in state court
to federal court. 28 U.S.C. § 1332(a)(1) provides for federal jurisdiction over cases between
“citizens of different states.” Federal diversity jurisdiction requires that the parties be completely
diverse. Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806). That is, no plaintiff and no defendant
may be citizens of the same state. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904,
907 (6th Cir. 1999).
Fraudulent joinder will not prevent removal based on diversity jurisdiction. Coyne ex rel.
Ohio v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). The removing party has the
burden of establishing fraudulent joinder. Her Majesty the Queen in Right of the Province of
Ontario v. City of Detroit, 874 F.2d 332, 330 (6th Cir. 1989). Fraudulent joinder occurs when
“there can be no recovery under the law of the state on the cause alleged or on the facts in view
of the law.” Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (citing
Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)). Thus, “the
question is whether there is arguably a reasonable basis for predicting that the state law might
impose liability on the facts involved.” Id. If there are any “doubts as to the propriety of
removal,” the court should remand the case. Coyne ex rel. Ohio, 183 F.3d at 493 (citing
Alexander, 13 F.3d at 949).
Under Kentucky law, a plaintiff asserting a negligence claim must show that the
defendant owed her a duty, the defendant breached that duty, and the defendant’s breach caused
her injuries. M & T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974). Nursing
homes have a duty to exercise “such reasonable care and attention for [the plaintiff’s] safety as
his mental and physical condition, known or discoverable by the exercise of ordinary care, may

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require.” Murphy v. EPI Corp., 2004 Ky. App. Unpub. LEXIS 187, at *7 (Ky. Ct. App. Mar. 5,
2004) (citing Miners Memorial Hosp. Ass’n of Ky. v. Miller, Ky., 341 S.W.2d 244, 245 (1960)).
Here, the complaint states that Adkins “was an Administrator of Golden Living Center –
Hillcreek during the residence of Marvis Higgs.” Compl. ¶ 14, ECF No. 1-1. Furthermore, “[t]he
causes of action made the basis of this suit arise out of [Adkins’] administration of the facility
during the residence of Marvis Higgs.” Id. Regarding the administrative negligence claim, the
complaint asserts, “As administrator of Golden Living Center – Hillcreek, Administrator
Defendant owed a duty to the residents of Golden Living Center – Hillcreek, including Marvis
Higgs, to provide services as a reasonable administrator within accepted standards for nursing
home administrators.” Id. ¶ 59. The complaint continues, “Administrator Defendant breached her
duties owed to the residents of Golden Living Center – Hillcreek, including Marvis Higgs,
during her tenure as administrator by failing to supervise nurses and nurses’ aides and failing to
hire sufficient nurses and nurses’ aides and, as such, the nurses and nurses’ aides were unable to
provide Marvis Higgs the care he required.” Id. ¶ 60. The complaint then lists acts and omissions
in which Adkins allegedly engaged. For example, the complaint asserts that Adkins failed to
“monitor or provide enough qualified nursing personnel at the facility to ensure that Marvis
Higgs . . . received timely and accurate care assessments.” Id. Similarly, the complaint states that
Adkins failed “to provide a safe environment for Marvis Higgs” or to “discipline or terminate
employees at the facility assigned to Marvis Higgs that were known to be careless, incompetent,
and unwilling to comply with the policy and procedures of the facility.” Id.
These allegations require Adkins to have been employed by Golden Living Center –
Hillcreek when Marvis Higgs was injured to properly assert a claim against her. When Adkins
ended her employment with Golden Living Center – Hillcreek, she could not have fulfilled her

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duty of care to the facility’s residents. For instance, after leaving Golden Living Center –
Hillcreek, Adkins could not have provided a safe environment for Marvis Higgs or known which
employees at the facility were assigned to Marvis Higgs. This duty of care would have fallen to
the administrator who replaced Adkins and was employed while Marvis Higgs was a resident at
the facility.
In light of the undisputed facts established in this case, no colorable claim is asserted
against Adkins. Her joinder is accordingly improper, and the Court may therefore ignore her
citizenship for purposes of its diversity analysis. See Alexander, 13 F.3d at 949. There is
complete diversity among the remaining parties, and the Court may exercise diversity
jurisdiction over the matter. The Court will accordingly deny Higgs’ motion to remand the case
to the Jefferson County Circuit Court.
IV.

Adkins’ Motion to Dismiss the Claims Asserted Against Her
Adkins has also moved to dismiss the claims that are asserted against her under Federal

Rule of Civil Procedure 12(b)(6). As explained above, Higgs has failed to state a colorable claim
against Adkins. Accordingly, the Court will grant Adkins’ motion to dismiss the claims.

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V.

Conclusion
The Court will deny Higgs’ motion to remand the case to the Jefferson County Circuit

Court. The Court will grant Adkins’ motion to dismiss the claims that are asserted against her.
Claims against Adkins will be dismissed. An order will be entered in accordance with this
memorandum opinion.

August 11, 2017

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