United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on Plaintiff's Motion to Remand.
(Doc. # 4). Plaintiff Cleophus Gaines, Jr. sued Defendants
Greene County Dialysis; DaVita, Inc.; DaVita Healthcare
Partners, Inc.; DaVita Accountable Care Solutions, LLC; DVA
Healthcare of Tuscaloosa, LLC; DVA Healthcare Renal Care,
Inc.; and DVA Renal Healthcare, Inc. in state court.
Plaintiff asserts state-law negligence and premises liability
claims against Defendants. Defendant DVA Renal Healthcare,
Inc. (“DVA Renal Healthcare”) removed the case to
this court, invoking diversity jurisdiction.
DVA Renal Healthcare does not dispute that Plaintiff and at
least some of the other named Defendants (collectively, the
“Alabama Defendants”) are all citizens of
Alabama, which would ordinarily defeat diversity
jurisdiction. However, it argues that because Plaintiff
fraudulently joined the Alabama Defendants to prevent
removal, their citizenship should be disregarded in
determining whether diversity jurisdiction exists. Plaintiff
responds by asserting that DVA Renal Healthcare has not met
the high standard for establishing fraudulent joinder and
thus requests that the case be remanded to state court. After
careful review, and for the reasons explained below, the
court agrees with Plaintiff. Because there is a possibility
that Plaintiff can state a vicarious liability claim for
negligence against at least one of the Alabama Defendants in
state court, the court cannot say those Defendants were
fraudulently joined and this case properly removed. Thus,
Plaintiff's Motion to Remand is due to be granted.
Factual and Procedural Background
case arises out of a tragic accident that led to the death of
Cleophus Gaines, Sr. On July 15, 2016, Gaines visited the
outpatient facility Greene County Dialysis to receive kidney
dialysis treatment. (Doc. # 1-1 at 12, ¶ 11). After
completing his dialysis treatment session, Gaines waited in
the front lobby of the facility for his wife to pick him up.
(Id. at 12, ¶ 13). When Gaines saw his wife
pull up to the front entrance, he rose from his seat and
began walking to the door. (Id. at 13, ¶ 16).
As he approached the front entrance, Gaines became dizzy,
lightheaded, and weak, and he fell hard to the floor,
severely injuring his left shoulder, left arm, and right hip.
(Id.). Shortly after the fall, someone called 911
and an ambulance arrived to take Gaines to the hospital.
(Id. at 15, ¶ 20). EMS personnel transported
Gaines to a hospital in Tuscaloosa, where he was promptly
treated and x-rayed by emergency room personnel.
(Id. at 15, ¶¶ 21-23). Hospital staff
later moved Gaines from the emergency department and admitted
him to a room at the hospital. (Id. at 16, ¶
24). He remained there until his health continued to decline,
at which point the hospital transferred him to the intensive
care unit (“ICU”). (Id.). Gaines'
health continued to decline while in the ICU, and he passed
away at the hospital on August 4, 2016, less than three weeks
after he was admitted. (Id. at 16, ¶ 25).
alleges that during the time Gaines was waiting in the lobby
after his dialysis treatment, no one from the dialysis
facility was in the lobby to monitor or assist patients who
had just undergone treatment. (Id. at 13, ¶
14). Plaintiff also claims Defendants breached their duty to
ensure proper supervision of and assistance to Gaines, who as
an elderly patient was at a known increased risk of
dizziness, fatigue and weakness after receiving dialysis
treatment and who himself had a documented prior history of
falls and near-falls in the preceding months recorded in his
chart at Greene County Dialysis. (Id. at 13-14,
¶¶ 15, 17-19). In his state-court Complaint,
Plaintiff claims Defendants are both vicariously liable for
the negligence of their agents and employees at Greene County
Dialysis and directly liable for their own negligence (Count
I). (Id. at 16-22). Plaintiff also asserts a
premises liability claim against Defendants (Count II),
alleging that they failed to take reasonable steps to make
the front lobby and entrance area of the dialysis facility
reasonably safe for their patients. (Id. at 23-25).
Cleophus Gaines, Jr., the personal representative of the
estate of Cleophus Gaines, Sr. and a citizen of Alabama,
filed this lawsuit in the Circuit Court of Greene County,
Alabama. (Id. at 3, 7). Defendant DVA Renal
Healthcare, a citizen of Colorado and Tennessee, removed the
case to this court, invoking diversity jurisdiction. (Doc. #
1 at ¶ 2-3). Plaintiff maintains that there is not
complete diversity of citizenship because all of the
Defendants except DVA Renal Healthcare are Alabama citizens.
(Doc. # 4 at 12). DVA Renal Healthcare does not dispute that
premise. Instead, DVA Renal Healthcare argues that removal is
proper because the Alabama Defendants were fraudulently
joined. Thus, the first issue the court must decide is
whether DVA Renal Healthcare has met its burden to show that
each of the other named Defendants was fraudulently joined.
If any one of them was not, then complete diversity does not
exist and the court lacks subject matter jurisdiction under
28 U.S.C. § 1332. Further, if DVA Renal Healthcare
succeeds in showing that each of the Alabama Defendants was
fraudulently joined, the court must also address whether
§ 1332's amount-in-controversy requirement is
Standard of Review
removing party bears the burden of establishing subject
matter jurisdiction over a case removed to this court.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
752 (11th Cir. 2010). Courts strictly construe removal
statutes, and “all doubts about jurisdiction should be
resolved in favor of remand to state court.” City
of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d
1310, 1313 (11th Cir. 2012). In particular, a party seeking
to remove a case on the basis of fraudulent joinder faces a
heavy burden of proof, Crowe v. Coleman, 113 F.3d
1536, 1538 (11th Cir. 1997), and must establish fraudulent
joinder by clear and convincing evidence, Henderson v.
Washington Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th
Cir. 2006). “Clear and convincing evidence” means
“[e]vidence indicating that the thing to be proved is
highly probable or reasonably certain” and is “a
greater burden than preponderance of the evidence . . . but
less than evidence beyond a reasonable doubt.”
Evidence, Black's Law Dictionary (10th ed.
court must determine whether fraudulent joinder occurred
“based upon the plaintiff's pleadings at the time
of removal, supplemented by any affidavits . . . submitted by
the parties.” Pacheco de Perez v. AT & T
Co., 139 F.3d 1368, 1380 (11th Cir. 1998). Though
permitted to consider evidentiary submissions by the parties,
the court must resolve all questions of fact in favor of the
plaintiff. Legg v. Wyeth, 428 F.3d 1317, 1323 (11th
Cir. 2005). Moreover, the court “must resolve any
uncertainties about state substantive law in favor of the
plaintiff.” Crowe, 113 F.3d at 1538.
28 U.S.C. § 1441 permits defendants to remove to federal
court any state court action falling within the subject
matter jurisdiction of the federal courts-that is, any case
that could have been brought originally in federal court.
Title 28 U.S.C. § 1332, in turn, grants federal district
courts jurisdiction over cases where complete diversity of
citizenship exists among the parties and where the amount in
controversy exceeds $75, 000, even if the case raises only
state law claims. If the law were that simple, there is no
doubt this case would belong in state court: the plaintiff
and several of the defendants are all citizens of the same
state (Alabama), and thus complete diversity does not exist.
But the law is not that simple. The doctrine of fraudulent
joinder provides an exception to the ordinary rules of
removal. Triggs v. John Crump Toyota, Inc., 154 F.3d
1284, 1287 (11th Cir. 1998). Under the doctrine, a district
court may exercise diversity jurisdiction even in the face of
incomplete diversity if the plaintiff fraudulently
joined the nondiverse defendants solely for the purpose of
defeating federal jurisdiction. Id.
Circuit, a defendant can show fraudulent joinder in three
circumstances. The first is where “there is no
possibility that the plaintiff would be able to establish a
cause of action against the [nondiverse] defendant in state
court.” Coker v. Amoco Oil Co., 709 F.2d 1433,
1440 (11th Cir. 1983). The second is where “the
plaintiff has fraudulently [pleaded] jurisdictional facts to
bring the [nondiverse] defendant into state court.”
Henderson, 454 F.3d at 1281. The third is
“where a diverse defendant is joined with a nondiverse
defendant as to whom there is no joint, several or
alternative liability and where the claim against the diverse
defendant has no real connection to the claim against the
nondiverse defendant.”  Triggs, 154 F.3d at
parties agree that only the first circumstance is at issue
here. No. one claims Plaintiff fraudulently pleaded
jurisdictional facts or that Plaintiff's claims against
DVA Renal Healthcare have no real connection to his claims
against the Alabama Defendants. Thus, the only issue the
court must decide is whether there is no possibility that
Plaintiff could establish  either a negligence or premises
liability claim against one of the Alabama Defendants in
Alabama's courts. But if there is even a possibility that
an Alabama court could conclude Plaintiff has stated a claim