Arnold v. National Healthcare/Bristol, LLC et al
Filing
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OPINION. Signed by Judge James P. Jones on 6/10/2014. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
DOROTHY ARNOLD,
BY PATRICK ARNOLD, ETC.,
Plaintiff,
v.
NHC HEALTHCARE/BRISTOL, LLC,
ETC., ET AL.,
Defendants.
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Case No. 1:14CV00020
OPINION
By: James P. Jones
United States District Judge
Clifton L. Corker, Johnson City, Tennessee, and Thomas C. Jessee, Johnson
City, Tennessee, for Plaintiff; William M. Moffett and P. Danielle Stone, Penn,
Stuart & Eskridge, Abingdon, Virginia, for Defendant NHC Healthcare/Bristol,
LLC.
In this personal injury case, I will grant the defendant’s Motion to Dismiss
for insufficient allegations of subject matter jurisdiction, and the action will be
dismissed without prejudice.
I
Dorothy Arnold, by her attorney-in-fact Patrick Arnold, filed this action
against NHC Healthcare/Bristol, LLC (“NHC Healthcare”), a limited liability
company which operated a skilled nursing facility in Bristol, Virginia, and against
ten unknown John Does who are alleged to be “the administrators of [NHC
Healthcare] during the residency of Dorothy Arnold.” (Compl. ¶ 31, ECF No. 1.)
The Complaint contains state common law and statutory claims relating to Mrs.
Arnold’s alleged injury while under the care and supervision of NHC Healthcare.
The plaintiff asserts subject matter jurisdiction of this court on the basis of
diversity of citizenship, and in support thereof alleges that Patrick Arnold is a
citizen of Tennessee, and that NHC Healthcare is a citizen of Virginia. Defendant
NHC Healthcare has moved to dismiss the action pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of such jurisdiction.
The plaintiff has not filed a response to the Motion to Dismiss within the
time required under the court’s local rules, W.D. Va. Civ. R. 11(c) (requiring
response to a motion within 14 days of service), and accordingly the motion is now
ripe for decision.
II
Pursuant to Rule 12(b)(1), a defendant may move to dismiss on the ground
that the court lacks subject matter jurisdiction. A challenge to subject matter
jurisdiction may proceed in two ways. See Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009). First, a defendant may attack the face of the complaint and
contend “that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
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In evaluating a facial challenge to subject matter jurisdiction, “the plaintiff, in
effect, is afforded the same procedural protection as he would receive under a Rule
12(b)(6) consideration.” Id.
Second, a defendant may attack subject matter jurisdiction as a matter of fact
and argue “that the jurisdictional allegations of the complaint [are] not true.” Id.
Under those circumstances, a plaintiff receives less procedural protection, and “the
district court is to regard the pleadings’ allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac
R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
In either circumstance, the plaintiff bears the burden. See Strawn v. AT&T
Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008) (“[A] party seeking to adjudicate
a matter in federal court must allege and, when challenged, must demonstrate the
federal court’s jurisdiction over the matter.”).
Because in this case the jurisdictional allegations of the Complaint are
facially insufficient, it is not necessary for me to address the defendant’s factual
challenge.
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III
A district court is granted original jurisdiction over a civil action “where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between . . . citizens of different States.”
28 U.S.C.A. §
1332(a)(1) (West 2011). Only complete diversity, where the citizenship of every
plaintiff is different from the citizenship of every defendant, satisfies the
jurisdictional requirement. See, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 68
(1996).
In the Complaint, the plaintiff alleges that defendant NHC Healthcare “is a
limited liability company organized and existing under the laws of the
Commonwealth of Virginia.” (Compl. ¶ 3, ECF No. 1.) While I must accept this
allegation as true, it is legally insufficient to meet the jurisdictional prerequisite
since for diversity purposes a limited liability company has the citizenship of all of
its members. See Cent. W.Va. Energy Co. v. Mountain State Carbon, LLC, 636
F.3d 101, 103 (4th Cir. 2011). Because the Complaint does not contain any
allegations of the citizenship of the members of NHC Healthcare, it is inadequate
to show the diversity citizenship of this defendant.1
1
NHC Healthcare attached to its Motion to Dismiss an affidavit attesting to the
citizenship of its members. According to the affidavit, NHC Healthcare’s members have
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Patrick Arnold asserts that he has the power of attorney for Dorothy Arnold,
who is alleged to be incapacitated. It is alleged that Patrick Arnold is a citizen of
Tennessee. While a representative may sue on behalf of an incompetent person,
Fed. R. Civ. P. 17(c)(1), in assessing diversity of citizenship, “the legal
representative of an infant or incompetent shall be deemed to be a citizen only of
the same State as the infant or incompetent.” 28 U.S.C.A. §1332(c)(2) (West
2006). The Complaint does not allege Mrs. Arnold’s citizenship.2
The plaintiff also names John Does as defendants.
“Sound authority
supports the general proposition that the ‘John Doe’ practice is unwarranted in
diversity cases.” Johnson v. Gen. Motors Corp., 242 F. Supp. 778, 779 (E.D. Va.
1965). As a result, where John Does are named, “the action is subject to dismissal
unless the John Does are eliminated or their citizenship affirmatively alleged.” Id.;
see also Sandler v. W. State Hosp., No. 5:02CV00107, 2003 WL 22722870, at *3
(W.D. Va. Nov. 18, 2003) (where a plaintiff “fails to provide the court with any
basis for determining the citizenship or identity of the John Does,” it is appropriate
citizenship in Delaware and Tennessee. As I have explained, it is not necessary for me to
consider these facts in order to decide the Motion to Dismiss.
2
The defendant surmises that Mrs. Arnold is a citizen of Tennessee, since it
asserts that her address when she was admitted to the nursing facility was the same as that
of Patrick Arnold, who is alleged to a citizen and resident of Sullivan County, Tennessee.
Nevertheless, it is not necessary for me to make a factual determination in that regard,
since her citizenship has not been alleged.
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to dismiss the John Doe defendants.).
The Complaint only identifies these
defendants as “individuals whom Plaintiffs are currently unable to identify despite
diligent efforts.” (Compl. ¶ 4, ECF No. 1.) It does not affirmatively allege their
citizenship nor provide the court any basis for determining such citizenship.
Without sufficient allegations of the citizenship of the parties, it is
impossible to determine whether this court has jurisdiction. It may be that Mrs.
Arnold is a citizen of Tennessee, along with defendant NHC Healthcare, in which
case the action, if it is to proceed, must be filed in state court. I make no final
determination in that regard. I only rule that the plaintiff has failed to properly
allege the subject matter jurisdiction of this court.
IV
For the foregoing reasons, the Motion to Dismiss (ECF No. 6) will be
granted. A separate order will be entered dismissing the case without prejudice.
DATED: June 10, 2014
/s/ James P. Jones
United States District Judge
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