United States District Court, W.D. Kentucky, Louisville Division
KIMBERLY E. JACOBS, by ROSALIND R. JACOBS, POA PLAINTIFF
HANGING ROCK LTC, LLC d/b/a/ ESSEX NURSING AND REHABLITATION CENTER; and JANE ROE DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge.
matter is before the Court on Plaintiff's Motion to
Remand to State Court (DN 8); Plaintiff's Motion for
Leave to Revive and File First Amended Complaint (DN 22); and
Plaintiff's Second Motion to Remand (DN 23). The motions
are ripe for adjudication. For the reasons provided below,
Plaintiff's Motion for Leave to Revive and File First
Amended Complaint (DN 22) and Plaintiff's Second Motion
to Remand (DN 23) are GRANTED.
Plaintiff's Motion to Remand (DN 8) is DISMISSED
22, 2018, Plaintiff filed an action in Jefferson Circuit
Court against Defendant, Hanging Rock LTC, LLC
(“Hanging Rock”) and an unnamed “Jane
Doe” defendant. (Compl., DN 1-2). In her Complaint,
Plaintiff asserted claims of negligence and breach of
contract for conduct occurring at Essex Nursing and
Rehabilitation Center (“Essex”)-a facility which
is owned, operated, or managed by Hanging Rock. (Compl.
¶ 3, DN 1-2). Pursuant to 28 U.S.C. §§ 1441
and 1446, Hanging Rock removed the action to federal court
based on diversity jurisdiction because Plaintiff is a
citizen of Kentucky, Hanging Rock is a North Carolina
corporation, and the damages in this case will likely exceed
$75, 000 if relief is granted. (Notice Removal 2-4, DN 1).
18, 2018, Plaintiff moved to remand her claim to state court
for two reasons: first, the original Plaintiff died after
filing suit but before removal, and as a result, Hanging Rock
could not give proper notice of removal until the action was
revived in state court; and second, there was no complete
diversity because an unknown “Jane Doe” Defendant
administrator of the nursing home resided in Kentucky.
(Pl.'s Mot. Remand 1-2, DN 8). Defendant responded that
it was not notified of the original Plaintiff's death
until after it filed for removal and argued complete
diversity should exist despite the unknown Defendant.
(Def.'s Resp. Pl's Mot. First Mot. Remand 3-4, DN
September 18, 2018, Plaintiff's moved to withdraw, and on
October 11, 2018, a motion to substitute counsel was filed.
(Pl.'s Mot. Withdraw, DN 16; Pl.'s Mot. Substitute,
DN 18). The motions were granted by Magistrate Judge Lindsay
on October 23, 2018. (Order, DN 20). On November 17, 2018,
Plaintiff moved for leave to revive and file her first
amended complaint (DN 22) and moved again to remand her claim
to state court. (DN 23). In these motions, Plaintiff seeks to
add Robert Flatt as a codefendant because he was the
administrator of the Essex facility during Plaintiff's
decedent's residency. (Am. Compl. ¶ 4, DN 22-3;
Pl.'s Second Mot. Remand 2-3, DN 23).
responds by urging the Court to use its discretion to thwart
Plaintiff's attempt to remand her action to state court
as a fraudulent joinder because she improperly added a
nondiverse party for the purpose of destroying diversity
jurisdiction. (Def.'s Resp. Pl.'s Second Mot. Remand
4, DN 24 [hereinafter Def.'s Second Resp.]). Defendant
also argues Plaintiff has failed to plead Defendant
Flatt's citizenship, but instead merely pleads his
residency. (Def.'s Second Resp. 14). In her Reply,
Plaintiff argues that she has alleged claims against
Defendant Flatt in his individual capacity and that the Court
should not deny her motion to remand based on a semantic
error when Defendant does not otherwise dispute putative
Defendant Flatt's Kentucky citizenship. (Pl.'s Reply
Def.'s Resp. Second Mot. Remand 4-6, DN 28 [hereinafter
and Federal Rules of Civil Procedure require that the caption
of a complaint include the names of all parties to the
action. Ky. R. Civ. P. 10.01; Fed.R.Civ.P. 10(a). Because she
did not name Flatt in the original complaint, Plaintiff now
moves to amend the complaint to name him as a defendant to
comply with these requirements. (Am. Compl. ¶ 4).
to amend a complaint is freely given when justice so
requires. Fed.R.Civ.P. 15(a). “If the underlying facts
or circumstances relied upon by a plaintiff may be a proper
subject of relief, [she] ought to be afforded an opportunity
to test [her] claim on the merits.” Foman v.
Davis, 371 U.S. 178, 182 (1962). It is within the
court's discretion whether to allow a plaintiff to join a
defendant who would destroy subject matter jurisdiction, but
if the court does allow it, then the court must remand the
action to state court. 28 U.S.C. § 1447(e).
Rock contends Plaintiff's purpose in amending the
complaint is to destroy diversity jurisdiction and urges the
court to use its discretion to deny the amendment and
preserve subject matter jurisdiction. (Def.'s Resp. 4).
The Court will permit Plaintiff to amend her complaint unless
Flatt has been fraudulently joined as a defendant. See
Green v. G2 Secure Staff, LLC, No. 07-409-C, 2008 WL
782612, at *2 (W.D. Ky. Mar. 21, 2008).
joinder occurs when the non-removing party joins a party
against whom there is no colorable cause of action.”
Saginaw Hous. Comm'n v. Bannum, Inc., 576 F.3d
620, 624 (6th Cir. 2009) (citation omitted). “To prove
fraudulent joinder, the removing party must present
sufficient evidence that a plaintiff could not have
established a cause of action against non-diverse defendants
under state law.” Coyne v. Am. Tobacco Co.,
183 F.3d 488, 493 (6th Cir. 1999) (citation omitted).
“The non-moving party's motive for joining the
non-diverse party to the lawsuit is ‘immaterial to our
determination regarding fraudulent joinder.'”
Walker v. Philip Morris USA, Inc., 443 Fed.Appx.
946, 952 (6th Cir. 2011) (citation omitted). “[T]he
question is whether there is arguably a reasonable basis for
predicting that the state law might impose liability on the
facts involved.” Probus v. Charter Commc'ns,
LLC, 234 Fed.Appx. 404, 407 (6th Cir. 2007) (citation
omitted). In determining whether Plaintiff has a colorable
cause of action against Flatt, the Court must resolve factual
disputes in Plaintiff's favor. See Coyne, 183 F.3d at
Amended Complaint, Plaintiff asserts negligence claims
against Flatt arising from his professional and statutory
duties as a nursing home administrator. (Am. Compl.
¶¶ 42-49). A negligence action requires: “(1)
a duty on the part of the defendant; (2) a breach of that
duty; and (3) consequent injury.” Mullins v.
Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky.
1992) (citation omitted). “An employee whose negligent
act created the liability may be joined as a
defendant.” Cua v. Pilot Travel Ctrs., LLC,
No. 11-76-C, 2011 WL 1832152, at *2 (W.D. Ky. May 12, 2011)
alleges Flatt breached duties by violating regulations from
Kentucky's Cabinet for Health and Family Services and the
United States Department of Health and Human Services which
require nursing home administrators to maintain minimum
standards and staffing at the Essex facility. (Am. Compl.
¶ 46(a)-(b)). Plaintiff also alleges Flatt failed to
ensure compliance with regulations promulgated under
Kentucky's Nursing Home Administrators Licensure Act of
1970. (Am. Compl. ¶ 46(c)). Plaintiff further asserts
Flatt breached his duty under these laws and regulations by,
inter alia, failing to increase the No. of personnel at
Essex; failing to ensure proper supervision, treatment,
assessment and monitoring; and failing to maintain records in
accordance with accepted standards and practices. (Am. Compl.
¶¶ 44-46). Plaintiff contends the decedent was a
member of the class intended to be protected by these laws
and regulations and that her physical injuries were
foreseeable consequences of breaching these statutory duties.
(Am. Compl. ¶¶ 47-48). The inquiry here is not
whether Plaintiff will ultimately ...