Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swift v. Purcell

United States District Court, N.D. Alabama, Southern Division

November 7, 2019

THOMAS SWIFT, Plaintiff,
ANTHONY B. PURCELL, et al., Defendants.



         This 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.

         I. Background

         Plaintiff 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).

         The 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).

         On 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).

         Steris 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, 12).

         II. Standard of Review

         The court begins its analysis by determining the proper standards of review that apply to the arguments at issue.

         A. Motion to Remand

         The 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.

         In a 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.”[1] 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 549.

         “When 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).

         B. Rule 12(b)(1) Standard

         Under 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. at 1259.

         Factual 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 omitted)).

         Here, 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.

         C. Rule 12(b)(6) Standard

         The 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. 2007).

         To 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.

         In 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.

         III. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.