Banks v. Lakeland Nursing and Rehabilitation Center, LLC et al
ORDER granting 4 Motion to Dismiss; denying 8 Motion to Remand as set out in the Order. The parties are instructed to contact United States Magistrate Judge F. Keith Ball within 10 days of this Order to set the case for a case-management conference. Signed by Chief District Judge Daniel P. Jordan III on January 17, 2023. (SP)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:22-CV-433-DPJ-FKB
LAKELAND NURSING AND
REHABILITATION CENTER, LLC; MORGAN
MCGUIRE, LPN, IN HER OFFICIAL AND
PERSONAL CAPACITIES; AND JOHN DOES 1-10
This medical-negligence case is before the Court on Plaintiff Queen Banks’s Motion to
Remand  and Defendant Morgan McGuire’s Motion to Dismiss . McGuire is a diversityspoiling Mississippi resident, and the question is whether Banks improperly joined her in this
action. Finding that she did, the Court denies Banks’s motion and grants McGuire’s.
Factual and Procedural Background
Consistent with the applicable standards, the following facts are construed in the light
most favorable to Banks. Banks was a patient at Lakeland Nursing and Rehabilitation Center,
LLC. Compl. [1-4] ¶ 9. On or around April 30, 2021, McGuire (a nurse there) applied Biofreeze
gel or some other substance to Banks’s shoulders. Id. ¶ 10 & n.1. After applying the substance,
McGuire left it in the room and exited. Id. ¶ 11.
“Immediately thereafter,” Jane Doe Defendant 1—who was a personal care assistant
employed by Lakeland—rubbed the substance “all over” Banks’s body including her genital
area. Id. ¶ 12. Banks then experienced burning, itching, irritation, and pain all over her body.
Id. Banks sued Lakeland and McGuire in state court claiming medical negligence, negligent
hiring and supervision, gross negligence, and breach of informed consent. She says that the
substance should not have been applied to her “eyes, mucous membranes, wounds[,] or
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otherwise damaged skin or irritated skin” and such application would not have happened if not
for Defendants’ negligence. Id. ¶ 14–15.
After Banks sued, Lakeland timely removed under 28 U.S.C. § 1332, arguing that
McGuire was improperly joined and that her non-diverse citizenship should be disregarded.
Notice of Removal  ¶ 10. McGuire then asked this Court to dismiss her as a party, arguing
that Banks’s complaint fails to state a claim against her upon which relief can be granted. Def.’s
Mem.  at 4.
After removal and McGuire’s motion, Banks filed her motion to remand. There, Banks
said McGuire breached the standard of care by leaving the substance in her room “without
physician approval.” Pl.’s Mem.  at 6. Banks further contended that this breach triggered a
series of events that culminated in her injury. Id. The parties thereafter agreed to a 60-day
period of remand-related discovery. See Order . After that, they completed briefing their
Banks now avers that it was ELIDEL 1% cream—an eczema treatment—that was
misapplied. Pl.’s Reply  at 3.1 Banks also says McGuire admitted during deposition
testimony that she applied the cream. Id. at 6–7. Defendants respond by arguing that Banks may
not now change the factual basis of her claim, and they further contend that the originally
pleaded facts fail to state a viable claim against McGuire. Defs.’ Sur-Reply  at 2.
The active ingredient in ELIDEL 1% cream is pimecrolimus. Medical records separately list
applications of ELIDEL 1% cream (a name brand) and pimecrolimus 1% (presumably a generic
version) to Banks. Treatment Admin. R. [30-7] at 1. The name brand was applied on April 30,
2021, but the Court will use “ELIDEL 1% cream” to refer to both the name brand and generic.
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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant” to
federal district court. 28 U.S.C. § 1441(a). Lakeland premises federal jurisdiction on 28 U.S.C.
§ 1332, under which the district courts have jurisdiction over civil actions between “citizens of
different States” where the amount in controversy exceeds $75,000. Id. § 1332(a)(1). For
diversity jurisdiction to exist, all named plaintiffs and all named defendants must be citizens of
different states. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005).
There is a “narrow exception” to the complete-diversity rule that applies when a plaintiff
improperly joins a diversity-spoiling defendant. Smallwood v. Ill. Cent. R.R. Co. (Smallwood I),
352 F.3d 220, 222 (5th Cir. 2003). The test for improper joinder is “whether the defendant has
demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant,
which stated differently means that there is no reasonable basis for the district court to predict
that the plaintiff might be able to recover against an in-state defendant.” Smallwood v. Ill. Cent.
R.R. Co. (Smallwood II), 385 F.3d 568, 572 (5th Cir. 2004) (en banc).
To predict whether a plaintiff has a reasonable basis for recovery, a “court may conduct a
Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine
whether the complaint states a claim under state law against the in-state defendant.” Id. When
doing so, the Court applies the federal version of Rule 12(b)(6). Int’l Energy Ventures Mgmt.,
L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016). And “[a]ny contested
issues of fact and any ambiguities of state law must be resolved in [the plaintiff’s] favor.” Travis
v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). The burden of establishing improper joinder is a
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“heavy” one, and the removing party must carry it to remain in federal court. Cuevas v. BAC
Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011).
Thus, to avoid dismissal—and in this case to be granted remand—a plaintiff must have
pleaded “sufficient factual matter . . . to state a claim to relief that is plausible on its face.”
Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). This is the same standard that applies to McGuire’s motion to
dismiss. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (quoting Iqbal, 556 U.S. at 678).
For this inquiry, “court[s] accept ‘all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369
F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)
(per curiam)). But “[w]e do not accept as true conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Thus, “courts ‘are not bound to
accept as true a legal conclusion couched as a factual allegation.’” Walker v. Beaumont Indep.
Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Ultimately, the standard “‘simply calls for enough fact to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary claims or elements.” In re S. Scrap
Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
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There are two jurisdictional questions the Court must resolve. First, what is Banks’s
claim against McGuire? Second, is there a “reasonable basis . . . to predict that [Banks] might be
able to recover against” McGuire for that claim? Smallwood II, 385 F.3d at 572. The Court will
address these questions in turn.
Banks’s Claim Against McGuire
As stated above, Banks’s claim against McGuire has evolved. While the complaint does
leave wiggle room for Banks to argue that a different cream caused her injuries, see Compl. [1-4]
¶ 10 & n.1, it also says McGuire applied the substance (now ELIDEL 1% cream) to Banks’s
shoulders and then left the room, id. ¶¶ 10–11. Banks flat out states that another nurse “rubbed
[the cream] over Plaintiff’s sensitive areas” after McGuire left. Id. ¶ 12. Banks has personal
knowledge of those facts, and she relied on them when she first sought remand. Pl.’s Mem. 
at 6 (arguing that “[a] finder of fact can easily conclude that leaving a foreign chemical substance
in a patient’s room without physician approval constitutes a breach of the standard of care”).
Now Banks says “Defendant McGuire applied ELIDEL 1% to Ms. Banks and said
substance is contraindicated for use in the rectal or vaginal areas.” Pl.’s Reply  at 8 (citing
McGuire Dep. [31-3] at 43–44). She implies that McGuire must have applied the cream to those
areas, but never directly says so; her complaint avers that McGuire did not. Compl. [1-4] ¶ 10.
Nor does McGuire’s cited testimony state that she applied the cream to the injured areas.
McGuire testified that she knew the cream should not be applied to the eyes, nose, mouth, vagina
or rectum; and McGuire explained that she applied the cream consistent with that understanding.
McGuire Dep. [31-3] at 44–47.
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The evolving nature of Banks’s position demonstrates why the Fifth Circuit disallows
such amendments when determining jurisdiction. In Cavallini v. State Farm Mutual Auto
Insurance Co., the court recognized that evidence can clarify an existing claim but observed that
there are no cases “in which such evidence has been considered to determine whether a claim has
been stated against the nondiverse defendant under a legal theory not alleged in the state[-]court
complaint.” 44 F.3d 256, 263 (5th Cir. 1995). That’s because “[j]urisdictional facts are
determined at the time of removal, not by subsequent events.” Flagg v. Stryker Corp., 819 F.3d
132, 137 (5th Cir. 2016) (quoting Louisiana v. Am. Nat’l Prop. & Cas. Co., 746 F.3d 633, 635
(5th Cir. 2014)).
Thus, “to determine whether a plaintiff has improperly joined a non-diverse defendant,
the district court must examine the plaintiff’s possibility of recovery against that defendant at the
time of removal.” Id. (emphasis in original). Post-removal liability theories will not defeat
Without such a rule, disposition of the issue would never be final, but would
instead have to be revisited every time the plaintiff sought to amend the complaint
to assert a new cause of action against the nondiverse defendant, all at
considerable expense and delay to the parties and the state and federal courts
Cavallini, 44 F.3d at 264; see also id. at 265 (finding diversity jurisdiction and noting that
plaintiff’s “proposed amended complaint [did] not clarify the jurisdictional facts at the time of
removal; it attempt[ed] instead to amend away the basis for federal jurisdiction”).
Banks is attempting to do the same thing through the arguments in her reply brief.
Consequently, the Court will consider only the theory of recovery against McGuire that Banks
pleaded in her state-court complaint. The next question is whether “there is no reasonable basis
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for the district court to predict [Banks] might be able to recover against [McGuire]” for leaving
ELIDEL 1% cream in Banks’s examination room. Smallwood II, 385 F.3d at 572.
Whether Banks’s Claim is Legally Cognizable
Whether Banks can state a medical-negligence claim against McGuire is a question of
Mississippi tort law. In Mississippi,
[a] prima facie case for medical malpractice must be made by proving the
following elements: (1) the existence of a duty by the defendant to conform to a
specific standard of conduct for the protection of others against an unreasonable
risk of injury; (2) a failure to conform to the required standard; and (3) an injury
to the plaintiff proximately caused by the breach of such duty by the defendant.
Drummond v. Buckley, 627 So. 2d 264, 268 (Miss. 1993) (citing Burnham v.
Tabb, 508 So. 2d 1072, 1074 (Miss. 1987)). “When proving these elements in a
medical malpractice suit, expert testimony must be used. Not only must this
expert identify and articulate the requisite standard that was not complied with,
the expert must also establish that the failure was the proximate cause, or
proximate contributing cause, of the alleged injuries.” Barner v. Gorman, 605 So.
2d 805, 809 (Miss. 1992) (citing Latham v. Hayes, 495 So. 2d 453 (Miss. 1986)).
Hubbard v. Wansley, 954 So. 2d 951, 956–57 (Miss. 2007).
Standard of Care and Breach
Both parties filed declarations from expert nurses addressing the standard of care.
Banks’s expert nurse, Lotashia D. Patrick, attested that ELIDEL 1% cream should never be
applied to “a patient’s eyes, nose, mouth, vagina or rectum.” Patrick Decl. [31-4] ¶ 8. She
further says such misapplication is a breach of the standard of care. Id. ¶ 10. She concludes with
the opinion that the misapplication caused Banks’s injury and thus McGuire was the proximate
cause of the injury.2 Id. ¶ 12. As noted, however, the Court must consider the facts Banks
pleaded and not her new theory. Patrick’s declaration addresses the latter. Defendants’ expert
As to the latter opinion, under Mississippi law, nurses cannot serve as experts on issues of
medical causation. See Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 652 (Miss. 2009)
(“We now explicitly hold that nurses cannot testify as to medical causation.”).
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nurse, Susan Lofton, opines that leaving ELIDEL 1% in the room would not breach the standard
of care. Lofton Decl. [28-2] ¶ 10.
Ultimately, Banks’s own affidavit is the only support for the allegation that McGuire
breached the standard of care by leaving the cream in the room. See Banks Am. Aff. [31-6] ¶ 5–
6. But there are no pleaded facts plausibly suggesting that this is so, and neither party cites a
case stating whether that conduct breaches the standard of care (the Court found no such
authority either). Banks has not met her burden on this element, but even assuming she had,
there is no reasonable basis to find that such breach was the proximate cause of Banks’s injuries.
Leaving the cream in the room may have been a but-for cause of the injury, but
proximate cause also requires foreseeability. “As is true of all negligence actions, a hospital
must exercise reasonable care in preventing foreseeable injuries to foreseeable plaintiffs.” St.
Dominic-Jackson Mem’l Hosp. v. Newton, 336 So. 3d 1089, 1093 (Miss. 2022) (quoting Clark v.
St. Dominic-Jackson Mem’l Hosp., 660 So. 2d 970, 972 (Miss. 1995)).
Banks claims that McGuire left the cream in the room but that Jane Doe Defendant 1—a
personal care assistant—applied it improperly. Compl. [1-4] ¶ 12; see also Banks Aff. [8-2] ¶ 4.
And that provider was not the only one administering the cream. The records indicate that a
variety of healthcare personnel applied the cream to Banks before and after April 30, 2021 (the
date McGuire allegedly left it in Banks’s room). McGuire Dep. [30-3] 39–41, 48; Treatment
Admin. R. [30-7] at 1. Indeed, it was to be applied twice a day from on or around April 22 to
May 2, 2021. See id. Put simply, there are no pleaded facts plausibly suggesting that McGuire
should have foreseen another healthcare provider ignoring the product label and misusing the
cream, especially when other providers were routinely administering it without incident. Nor has
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Banks offered any legal authority suggesting that such negligence would be foreseeable to
McGuire.3 As her complaint stands, there is no reasonable basis to predict that Banks can
recover against McGuire. Smallwood II, 385 F.3d at 572.
Banks disagrees, stressing that the Smallwood II inquiry is whether there is a “possibility
of recovery against the local defendant.” Pl.’s Reply  at 12 (emphasis in original) (citing
Smallwood II, 385 F.3d at 573). True, but a “‘mere theoretical possibility of recovery under
local law’ will not preclude a finding of improper joinder.” Smallwood II, 385 F.3d at 573 n.9
(quoting Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)). In fact, under
Smallwood II, the Court can either conduct a 12(b)(6)-type analysis or go further and conduct a
summary inquiry even where a plaintiff would survive a Rule 12(b)(6) challenge. Id. at 573.
Here, Banks has failed a Rule 12(b)(6) challenge, and, even considering a summary inquiry, she
has not established the elements of a claim through expert testimony.
Though not argued precisely this way, “negligence which merely furnished the condition or
occasion upon which injuries are received, but does not put in motion the agency by or through
which the injuries are inflicted, is not the proximate cause thereof.” Robison v. McDowell, 247
So. 2d 686, 688 (Miss. 1971) (citations omitted). Thus, “[i]f the act complained of is only a
remote cause, superseded by an independent, efficient intervening cause that leads in unbroken
sequence to the injury, the original negligent act is not a proximate, but a remote, cause. Thus,
not being foreseeable, the original cause is not actionable.” Id. at 689. For example, in Causey
v. Sanders, doctors at the University of Mississippi Medical Center (UMC) recommended
hospice care for a patient they misdiagnosed with pancreatic cancer. 998 So. 2d 393, 396 (Miss.
2008). While in hospice, a doctor allegedly caused the patient to overdose on Dilaudid. Id. at
387. Though the cancer diagnosis was incorrect, the Mississippi Supreme Court held, as a matter
of law, that “UMC could not have reasonably foreseen that when Allen entered the hospice, she
would be overdosed with Dilaudid.” Id. at 406 (affirming decision to deny apportionment-offault instruction regarding UMC’s alleged negligence). The same is true here; the pleaded facts
do not plausibly allege that McGuire should have foreseen another healthcare provider misusing
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The Court has considered all arguments; those not discussed would not change this result.
Defendant Morgan McGuire’s Motion to Dismiss  is granted; Plaintiff Queen Banks’s Motion
to Remand  is denied. The parties are instructed to contact United States Magistrate Judge F.
Keith Ball within 10 days of this Order to set the case for a case-management conference.
SO ORDERED AND ADJUDGED this the 17th day of January, 2023.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
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