United States District Court, E.D. Arkansas, Western Division
SALLYE BLAIR, by and through her Power of Attorney, Darrick Blair PLAINTIFF
HIGHLANDS OF LITTLE ROCK SOUTH CUMBERLAND, LLC d/b/a Highlands of Little Rock at Cumberland Therapy and Living Center; et al. DEFENDANTS
ROY WILSON UNITED STATES DISTRICT JUDGE
are several motions for summary judgment. Responses have been
filed. However, after reviewing the briefs, I find that
diversity jurisdiction is lacking and this case must be
alleges that she suffered injuries while residing at
Defendants' nursing home. Defendants removed this case on
May 16, 2016 based on diversity jurisdiction. Although there
was a non-diverse Defendant - Mary D. Huntsman-Hartfield -
Defendants asserted that she was fraudulently joined.
to the Complaint, Ms. Huntsman-Hartfield was the
“Administrator” at the nursing home and
“undertook duties of care to the residents at the
facility.” Plaintiff alleges that she “did not
use ordinary care to administer the facility in compliance
with accepted professional and industry standards and
principles that apply to professionals providing services in
such facilities.” Plaintiff also contends that Ms.
Huntsman-Hartfield failed to “assign nursing personnel
at the facility duties consistent with their education and
experience based on [Plaintiff's] . . . nursing and
rehabilitative needs.” Additionally, she alleges that
Ms. Huntsman-Hartfield “failed to supervise” and
“failed to ensure that trained and qualified staff, in
sufficient numbers” were at the facility, and this
under-staffing led to Plaintiff's injuries.
presence of the nondiverse party automatically destroys
original jurisdiction: No party need assert the defect. No
party can waive the defect or consent to jurisdiction. No
court can ignore the defect; rather a court, noticing the
defect, must raise the matter on its
Defendants argue that there is complete diversity because Ms.
Huntsman-Hartfield is fraudulently joined. Fraudulent joinder
exists when a plaintiff files a “frivolous or otherwise
illegitimate claim against a non-diverse defendant solely to
prevent removal.”“However, if there is a
‘colorable' cause of action - that is, if the state
law might impose liability on the resident defendant
under the facts alleged - then there is no fraudulent
joinder.” Stated another way, “if there is a
reasonable basis in fact and law supporting the claim, the
joinder is not fraudulent.”
Notice of Removal, Defendants argue that “Arkansas law
requires a high degree of personal involvement on the part of
an individual employee before that employee may have personal
liability for harms alleged by a
plaintiff.” However, as mentioned above, Plaintiff
asserted that Ms. Huntsman-Hartfield's negligence
resulted in her injuries. At the time of removal, state law
might have imposed liability on Ms.
Huntsman-Hartfield if she had personal involvement with
Plaintiff. Furthermore, if she was fraudulently joined,
Defendants could have requested her dismissal long ago.
Instead, after discovery, Defendants' filed a Motion for
Summary Judgment. The fact that a Motion for Summary Judgment
is required to remove Ms. Huntsman-Hartfield from the case
seems to contradict the argument that there was no way that
state law might impose liability on Ms.
Huntsman-Hartfield based on the allegations in the Complaint.
on the findings of fact and conclusions of law above, the
Clerk of the Court is directed to immediately remand this
case to the Circuit Court of Pulaski County.