Champluvier v. Simpson

• Decision Date: 30 March 2021
• Docket Number: No. 21-cv-2072-JPM-tmp,21-cv-2072-JPM-tmp
• Parties: DEBORAH CHAMPLUVIER, Plaintiff, v. DR. GARY D. SIMPSON, DDS, D/B/A MIDSOUTH DENTAL CENTER, Defendant.
• Court: U.S. District Court — Western District of Tennessee

DEBORAH CHAMPLUVIER, Plaintiff, v. DR. GARY D. SIMPSON, DDS, D/B/A MIDSOUTH DENTAL CENTER, Defendant.

No. 21-cv-2072-JPM-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

March 30, 2021

REPORT AND RECOMMENDATION

Before the court is pro se plaintiff Deborah Champluvier's "Objection to Defendant's Notice of Removal," which the undersigned construes as a motion to remand, and a motion for judgment on the pleadings filed by defendant Dr. Gary D. Simpson, DDS, D/B/A Midsouth Dental Center.¹ (ECF Nos. 10-12.) For the reasons below, it is recommended that the motion to remand be granted and that the motion for judgment on the pleadings be denied as moot and without prejudice. In the alternative, should the court find that remand is not warranted, the undersigned recommends that the motion for judgment on the pleadings be granted.

I. PROPOSED FINDINGS OF FACT

On January 27, 2020, pro se plaintiff Deborah Champluvier went to see Dr. Gary D. Simpson, DDS, D/B/A Midsouth Dental Center ("Simpson") in Memphis, Tennessee, for a dental appointment. (ECF No. 1-2 at 3.) Champluvier scheduled the appointment because she had been suffering from severe tooth pain. (ECF No. 1-2 at 3.) During the appointment, Simpson took an x-ray and examined the left side of Champluvier's mouth, where the pain was coming from. (ECF No. 1-2 at 3-4.) Following the examination, Simpson concluded that he needed to extract a tooth. (ECF No. 1-2 at 4.) After pulling the tooth, Champluvier's mouth began to bleed. (ECF No. 1-2 at 4.) According to Champluvier, she was in so much pain that she began to cry. (ECF No. 1-2 at 4.) Simpson sent Champluvier home without explaining why her mouth was bleeding or why she was in pain. (ECF No. 1-2 at 4.)

Champluvier returned to Simpson's office the next day because she was still in pain. (ECF No. 1-2 at 4.) According to Champluvier, Simpson told her that there was nothing he could do and "screamed" at her to leave his office. (ECF No. 1-2 at 4.) On January 29, 2020, Champluvier tried calling Simpson's office to ask for help with managing the pain. (ECF No. 1-2 at 4.) She spoke with a member of Simpson's staff, who told her to come in the following day, which she did. (ECF No. 1-2 at 4.) During her appointment on January 30, 2020, Simpson told Champluvier that she likely had a dry socket. (ECF No. 1-2 at 4.) When Simpson askedher to open her mouth so that he could inspect the tooth, Champluvier was unable to do so because her mouth was swollen. (ECF No. 1-2 at 4.) Simpson again sent Champluvier home, telling her that there was nothing he could do if she could not open her mouth. (ECF No. 1-2 at 4-5.)

That night, Champluvier's brother took her to Baptist Memorial Hospital Desoto in Southaven, Mississippi. (ECF No. 1-2 at 5.) According to Champluvier, the pain in her mouth had reached a "10 plus" and her mouth had swollen to the point where she was unable to chew. (ECF No. 1-2 at 5.) Dr. Cameron Walton performed a computerized tomography scan on the left side of Champluvier's mouth, which revealed that she was suffering from an abscess infection. (ECF No. 1-2 at 5.) Dr. Walton informed Champluvier that the hospital did not have the resources to treat her and transferred her to Regional One Hospital in Memphis, Tennessee. (ECF No. 1-2 at 5.) After being taken by ambulance to Regional One Hospital, doctors performed emergency surgery consisting of an incision and drainage of the left pterygomandibular abscess. (ECF No. 1-2 at 6.) Champluvier remained in the hospital for five days after the surgery. (ECF No. 1-2 at 6.) According to Champluvier, the holes where the doctors had inserted tubes during the surgery continued to drain for the next two weeks. (ECF No. 1-2 at 6.) Since the surgery, she continues to suffer from pain in her neck,chin, ear, lip, and head, and parts of her face remain numb. (ECF No. 1-2 at 6.)

On January 4, 2021, Champluvier sent Simpson a letter titled "Notice of Claim," setting forth the narrative described above. (ECF Nos. 1-2 at 11-13.) On January 26, 2021, Champluvier filed the instant action in the Circuit Court for Shelby County, Tennessee. (ECF No. 1-2 at 10.) In the complaint, Champluvier alleges that Simpson was negligent because he did not recognize that her tooth was abscessed from the x-rays and that, instead of pulling the tooth during the initial appointment, he "should have given [her] antibiotics and sent [her] home and rescheduled her an appointment to come back and make sure the abscess was gone before he pulled [her] tooth." (ECF No. 1-2 at 7.) She also alleges that he was negligent by not adhering to his internal policy that a patient be examined prior to extraction of any teeth to determine if there may be any "abnormalities or difficulties," such as an abscess. (ECF No. 1-2 at 8.)

On January 28, 2021, Simpson was served with the complaint in state court. (ECF No. 1 at 1.) Simpson filed a Notice of Removal with this court on February 3, 2021, and an answer to the complaint on February 12, 2021. (ECF Nos. 1; 8.) On February 23, 2021, Simpson filed a motion for judgment on the pleadings and an accompanying memorandum. (ECF Nos. 10-11.) In his motion, Simpson argues that Champluvier's complaint must be dismissed because shedid not comply with the sixty-day notice requirement of the Tennessee Healthcare Liability Act ("THLA") and that she failed to file a certificate of good faith with her complaint, as required by Tennessee law. (ECF Nos. 10; 11 at 3.) Champluvier responded to the motion for judgment on the pleadings on March 10, 2021, arguing that the THLA's certificate of good faith requirement does not apply to the instant lawsuit because of the common knowledge exception. (ECF No. 22.) On March 26, 2021, Simpson filed a reply disputing that the common knowledge exception applies and arguing that, regardless, Champluvier did not comply with the sixty-day waiting period requirement. (ECF No. 25.)

In the meantime, on February 25, 2021, Champluvier filed a document titled, "Plaintiff's Objection to Defendant's Notice of Removal to the United States District Court for the Western District of Tennessee at Memphis from the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis." (ECF No. 12.) In her filing, Champluvier argues that her case does not present a federal question and that diversity jurisdiction does not exist because "[j]urisdiction in this case is in the Circuit Court of Tennessee [f]or [t]he Thirtieth Judicial District at Memphis as everything in plaintiff's complaint took place in Memphis, Tennessee." (ECF No. 12 at 2.) Simpson responded on March 5, 2021, conceding that this court lacks federal questionjurisdiction but arguing instead that removal is proper because diversity jurisdiction exists. (ECF No. 16 at 1-2.)

II. PROPOSED CONCLUSIONS OF LAW

A. Motion to Remand

"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States[.]" 28 U.S.C. § 1441. "Ordinarily, a defendant may remove a state court case to federal court only if it could have been brought there in the first place; that is, if the federal court would have original jurisdiction over the case." Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir. 1996). In removing an action to federal court, "[t]he party seeking removal bears the burden of demonstrating that the district court has original jurisdiction." Shupe v. Asplundh Tree Expert Co., 566 F. App'x 476, 478 (6th Cir. 2014) (quoting Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006)).

In his Notice of Removal, Simpson relies on diversity of citizenship under 28 U.S.C. § 1332 as the basis for this court's jurisdiction. (ECF No. 1-1.) According to § 1332, "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." A federal court has jurisdiction under § 1332only if there is "complete diversity between all plaintiffs and all defendants." Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (internal citations omitted). Additionally, "[i]n the Sixth Circuit, it is generally agreed that the amount [in] controversy is determined 'from the perspective of the plaintiff, with a focus on the economic value of the rights he seeks to protect.'" Fed. Nat'l Mortg. Ass'n v. Jaa, No. 14-2065-STA-dkv, 2014 WL 1910898, at *5 (W.D. Tenn. May 13, 2014) (quoting Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 376-77 (6th Cir. 2007)).

Based on the record before the court, it appears that Champluvier is a citizen of Mississippi and Simpson is a citizen of Tennessee.² Therefore, the undersigned submits that complete diversity exists. Further, Champluvier alleges in her complaint that her estimated damages - including medical bills, pain and suffering, and punitive damages - total $1,559,754.62, a sum that is well in excess of the statutory requirement. Therefore, the elements of diversity jurisdiction are met in this case.

However, 28 U.S.C. § 1441(b)(2) (known as the forum-defendant rule) establishes that "[a] civil action otherwise removablesolely on the basis of the jurisdiction under section 1332(a) of this title 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." Because Champluvier initially filed this action in Tennessee state court, removal on the basis of diversity jurisdiction would be barred if Simpson is a citizen of Tennessee. See Athena of SC, LLC. v. Macri, No. 3:15-cv-41, 2015 WL 11108894, at *1 (E.D. Tenn. Aug. 20, 2015) ("[E]ven if there is complete diversity among the parties, the presence of a properly joined and served resident defendant bars removal."...