United States District Court, E.D. Arkansas, Western Division
GREGORY RICE as Special Administrator of the Estate of Fred Rice, and on behalf of the Wrongful Death Beneficiaries of Fred Rice, PLAINTIFF,
ADCARE OPERATIONS LLC, et al., DEFENDANT
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE.
Rice commenced this action in the Circuit Court of Pulaski
County, Arkansas on June 28, 2016, against entities and
individuals involved in the operation of Woodland Hills
Healthcare and Rehabilitation, a Little Rock nursing home.
Document #2. Gregory Rice represents the estate of his
father, Fred Rice, along with the wrongful death
beneficiaries of Fred Rice. Id. Fred Rice resided at
Woodland Hills from February 21, 2014, until his death on May
4, 2015. Id. at 2-3, ¶ 4. The complaint alleges
that Woodland Hills was chronically understaffed in violation
of Arkansas's Long-Term Care Facility Residents Rights
Act, the Arkansas Deceptive Trade Practices Act, the
admission agreement, and the provider agreement; that the
failure to adequately staff Woodland Hills constituted
ordinary negligence, medical malpractice, and intentional
interference with a contractual relationship; and that the
defendants engaged in a civil conspiracy to violate and
conceal past violations of laws against understaffing. The
defendants removed the action to this Court on August 19,
2016, based on diversity jurisdiction under 28 U.S.C. §
1332(a). Document #1. Rice has filed a motion to remand.
Document #5. For the following reasons, Rice's motion is
defendant may remove a state court action to federal court
only if the federal district court has original jurisdiction.
28 U.S.C. § 1441(a); see also Arnold Crossroads,
L.L.C. v. Gander Mountain Co., 751 F.3d 935,
938 (8th Cir. 2014). District courts have original
jurisdiction of all civil actions where the amount in
controversy exceeds $75, 000 and there is complete diversity
of citizenship among the litigants. 28 U.S.C. §
1332(a)(1). “Complete diversity of citizenship exists
where no defendant holds citizenship in the same state where
any plaintiff holds citizenship.” OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
2007) (citation omitted). Once an action is removed, a
plaintiff may move to remand the action to state court, and
the action must be remanded if the district court lacks
subject matter jurisdiction. 28 U.S.C. § 1447(c). The
burden is on the defendant to establish the Court's
jurisdiction by a preponderance of the evidence. In re
Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir.
Gregory Rice is a citizen of California, section 1332(c)(2)
provides that “the legal representative of the estate
of a decedent shall be deemed to be a citizen only of the
same State as the decedent . . . .” Fred Rice was a
citizen of Arkansas and defendants Richard West and Jacquelyn
Campbell are citizens of Arkansas. The defendants have
acknowledged that “as Special Administrator of the
Estate, Mr. Gregory Rice is deemed a citizen of
Arkansas.” Document #7 at 2. They argue, however, that
Gregory Rice is not pursuing this action in his role as the
legal representative of Fred Rice's estate but rather as
the representative of the wrongful death beneficiaries.
Because the estate does not receive any portion of a recovery
in a wrongful death action under Ark. Code Ann. §
16-62-102(e), the defendants argue that Gregory Rice is not a
legal representative of the estate and is deemed a citizen of
California. Document #7 at 3 (citing Steinlage ex rel.
Smith v. Mayo Clinic Rochester, 435 F.3d 913, 920 (8th
Cir. 2006) (applying Minnesota law)).
complaint seeks relief for injuries Fred Rice endured during
his life time, including, but not limited to, dehydration,
over-medication, failure to schedule grooming and hygiene
appointments, multiple falls, and pressure ulcers. Document
#2 at 14, ¶ 34. The complaint also seeks relief for his
death. Id. These are injuries for which Fred Rice
could have sought relief, had he survived, and any recovery
for these injuries will go to the estate. See Ark.
Code Ann. § 16-62-101; McMullin v. United
States, 515 F.Supp.2d 914, 919 (E.D. Ark. 2007). The
complaint alleges both a wrongful death claim and a survival
Arkansas, survival claims and wrongful death claims are
“typically brought by the personal representative of
the decedent and joined in one action.” 1 Howard W.
Brill, Ark. Law of Damages § 34:1 (2015) (citing
Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33
(1988)). The survival claim-for which the personal
representative is the legal representative of the estate as
contemplated by section 1332(c)(2)-destroys complete
diversity. See Gustafson v. Zum Brennen, 546 F.3d
398, 402 (7th Cir. 2008). Even if Rice, as a representative
of the wrongful death beneficiaries, is a citizen of
California, he is also a representative of the estate, and in
that capacity he is deemed to be a citizen of Arkansas, which
destroys diversity jurisdiction.
civil action otherwise removable solely on the basis of
[diversity jurisdiction] may not be removed if any of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2). Again, West and
Campbell are citizens of Arkansas. They were properly joined
and served. Documents #5-2 and #5-3. The defendants summarily
argue that the Court should disregard their citizenship
because they were fraudulently joined. Document #7 at 3.
“Fraudulent joinder occurs when a plaintiff files a
frivolous or illegitimate claim against a non-diverse
defendant solely to prevent removal.” In re
Prempro, 591 F.3d at 620 (citing Filla v. Norfolk S.
Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)). The
defendants must show by a preponderance of the evidence that
Rice's claims against West and Campbell have “no
reasonable basis in fact and law.” See Filla,
336 F.3d. at 810 (quotation and citation omitted). The
defendants' bare assertion that Rice does not intend a
joint judgment against all the defendants and that he has
focused his allegations on the corporations that operate
Woodland Hills, rather than on the conduct of West and
Campbell as a nursing home administrator and director of
nursing, does not satisfy this burden. Document #7 at 4.
motion to remand is GRANTED. Document #5. This action is
remanded to the ...