United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Plaintiff Thomas Swift's
(“Plaintiff”) Motion to Remand for Lack of
Subject Matter Jurisdiction (see Doc. # 9) and
Defendants Purcell and Knight's and Defendant Steris
Corp.'s Motions to Dismiss (see Docs. # 3, 7).
Plaintiff's Motion for Remand has been fully briefed
(see Docs. # 9, 11, 12) and is ripe for decision.
Defendants' Motions to Dismiss, though not fully briefed,
are also ripe for decision, as discussed below. After careful
review, and for the reasons explained below, Plaintiff's
Motion to Remand is due to be denied, Defendants Purcell and
Knight's Motion to Dismiss is due to be granted,
therefore dismissing without prejudice Plaintiff's
claims, and Defendant Steris Corp.'s Motion to Dismiss is
moot, as Plaintiff is directed to amend his pleadings.
brought a wrongful death action in the Circuit Court of
Jefferson County, Alabama on March 14, 2019 against STERIS
Corp. (“Steris Corp.”), Anthony B. Purcell
(“Purcell”), in his individual capacity, and
Kevin B. Knight (“Knight”), in his individual
capacity. (Doc. # 1-3 at 8, 9-10).
claims asserted in this case arise from the tragic events
that occurred on March 14, 2018. Plaintiff is the widower and
personal representative of the estate of Nancy Swift, the
deceased (“Swift”). (Doc. # 1-3 at ¶ 1). At
the time of the event, Swift was employed by University of
Alabama-Birmingham (“UAB”) Highlands Hospital as
a registered nurse, and she worked on the second floor of the
building. (Id. ¶ 4). Swift worked with her
colleague, Tim Isley, who is “an instrument management
supervisor” allegedly employed by Defendant Steris
Corp. (Id.). Both Swift and Isley supervised the
operations and daily work of Trevis Devon Coleman, an
employee of Central Sterile Supply. (Id.). Plaintiff
alleges that Swift and Isley knew or should have known that
Coleman had violent propensities because “Coleman had
shown signs and concerns over his job performance and a
hostile attitude leading up to [the] evening.”
(Id. ¶ 5). Defendant Purcell was the Associate
Vice President and Chief of Police at UAB, and his department
“maintained and operated a hospital precinct, which
included UAB Highlands Hospital. (Id. ¶ 2).
Defendant Knight was a Sergeant and the Security Manager for
UAB Highlands Hospital. (Id. ¶ 3).
March 14, 2018, Coleman brought a firearm onto the premises
of UAB Highlands Hospital. (Id. ¶ 5). Coleman
proceeded to the second floor and placed the firearm in the
desk of Swift. (Id.). At approximately 7:00 p.m. on
the evening of March 14, 2018, Coleman retrieved the firearm
from Swift's desk and shot and killed Swift and seriously
injured Isley. (Id. ¶ 6). Coleman then shot
himself. (Id.). Plaintiff contends that all
defendants were negligent in allowing Coleman to enter the
building with a firearm. (Id. ¶ 7). Plaintiff
also contends that Purcell and Knight, in their individual
capacities, “were acting beyond the scope of their
authority and in contravention of written guidelines,
policies, and procedures when they negligently caused or
negligently allowed insufficient, inadequate[, ] and
dangerous acts and omissions to impair the security at UAB
Highlands Hospital.” (Id. ¶ 8).
Specifically, Plaintiff alleges that both Purcell and Knight
failed to adhere to and assure the performance of guidelines,
policies, and procedures that would keep metal detectors
maintained and operated. (Id.). And, with regard to
Steris Corp., Plaintiff contends that it had a
“contract or business relationship” with UAB
Highlands Hospital regarding instrument management and
sterility, and that it failed to “take notice and
action to eliminate or control the hostility and attitude of
Coleman” during the performance of his work.
(Id. ¶ 10).
Corp. timely filed its Notice of Removal on April 18, 2019
and argued that because Purcell and Knight were fraudulently
joined to destroy diversity jurisdiction, the court should
not take those parties into consideration when determining
whether diversity jurisdiction exists. (Doc. # 1). After
Plaintiff filed his Motion to Remand, Steris Corp., Purcell,
and Knight filed their responses in opposition. (Docs. # 11,
Standard of Review
court begins its analysis by determining the proper standards
of review that apply to the arguments at issue.
Motion to Remand
court has an obligation to inquire into its own jurisdiction.
Univ. S. Ala. V. Am. Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999). “[R]moval jurisdiction is no
exception to . . . [this] obligation.” Id.
Under 28 U.S.C. § 1441(a), a defendant may remove an
action brought in state court to a United States district
court that has original jurisdiction--either federal question
or diversity jurisdiction. Under 28 U.S.C § 1332(a), a
federal district court has diversity jurisdiction over
parties who are completely diverse in citizenship to one
another and who exceed the statutorily prescribed amount in
controversy of $75, 000, exclusive of interest and costs.
Underwriters at Llyod's, London v.
Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). A
“party commencing suit in federal court [under §
1332] . . . has the burden of establishing, by a
preponderance of the evidence, facts supporting the existence
of federal jurisdiction.” Underwriters, 613
F.3d at 1085.
removal case alleging fraudulent joinder, “the removing
party has the [heavy] burden of proving that either: (1)
there is no possibility the plaintiff can establish a cause
of action against the resident defendant; or (2) the
plaintiff has fraudulently pled jurisdictional facts to bring
the resident defendant into state court.” Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); B,
Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.
Unit A 1981). “The determination of whether a resident
defendant has been fraudulently joined must be based upon the
plaintiff's pleadings at the time of removal,
supplemented by any affidavits and deposition transcripts
submitted by the parties.” Pacheco de Perez v.
AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). And,
in deciding whether a case should be remanded, the court
“must evaluate the factual allegations in the light
most favorable to the plaintiff and must resolve any
uncertainties about state substantive law in favor of the
plaintiff.” Miller Brewing Co., 663 F.2d at
considering a motion for remand, the court is not to weigh
the merits of a plaintiff's claim beyond determining
whether it is an arguable one under state law;”
“[i]f there is even a possibility that a state court
would find that the complaint states a cause of action
against any one of the resident defendants, the federal court
must find that joinder was proper and remand the case to
state court.” Miller Brewing Co., 663 F.2d at
549; Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41
(11th Cir. 1993), superseded by statute on other grounds
as stated in Georgetown Manor, Inc. v. Ethan Allen,
Inc., 991 F.2d 1533 (11th Cir.1993).
Rule 12(b)(1) Standard
Rule 12(b)(1), an attack on subject matter jurisdiction is
either facial or factual. Lawrence v. Dunbar, 919
F.2d 1525, 1528-29 (11th Cir. 1990). Facial attacks
“require[ ] the court merely to look and see if [the]
plaintiff has sufficiently alleged a basis of subject matter
jurisdiction, and the allegations in his complaint are taken
as true for the purposes of the motion.” Id.
attacks, on the other hand, challenge “the existence of
subject matter jurisdiction in fact, irrespective of the
pleadings.” Id. at 1529. When the challenge is
a factual attack, “no presumptive truthfulness attaches
to plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Id. (quoting Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981)); Ex Parte
Safeway, 990 So.2d at 350 (“[A] court deciding a
Rule 12(b)(1) motion asserting a factual challenge
‘must go beyond the pleadings and resolve any disputed
issues of fact the resolution of which is necessary to a
ruling upon the motion to dismiss.'” (quotation
although Defendant has not been specific, the court
determines that Defendant's attack is facial because it
attacks Plaintiff's specific claims in the pleading.
Rule 12(b)(6) Standard
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F.Appx. 136, 138 (11th
Cir. 2011) (unpublished) (quoting Am. Dental Assn. v.
Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That
task is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
well-pleaded facts, accepted as true, do not state a claim
that is plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 570.