Olowo-Ake v. Emergency Med. Servs. Corp.

• Decision Date: 13 November 2012
• Docket Number: CAUSE NO. 3:12-CV-227-CWR-FKB
• Citation: Olowo-Ake v. Emergency Med. Servs. Corp., CAUSE NO. 3:12-CV-227-CWR-FKB (S.D. Miss. Nov 13, 2012)
• Parties: MICHAEL OLOWO-AKE, SR., as Administrator of the Estate of Michael Olowo-Ake, Jr., and on behalf of all of the Heirs at Law and wrongful death beneficiaries of Michael Olowo-Ake, Jr., deceased PLAINTIFF v. EMERGENCY MEDICAL SERVICES CORPORATION; AMERICAN MEDICAL RESPONSE, INC.; JIM POLLARD; MARVIN HEWATT ENTERPRISES, INC.; CHEVRON U.S.A., INC.; JOHN DOES 1-10 DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

MICHAEL OLOWO-AKE, SR., as Administrator of the Estate of Michael Olowo-Ake, Jr.,and on behalf of all of the Heirs at Law and wrongful death beneficiaries of Michael Olowo-Ake, Jr., deceased PLAINTIFF

v. EMERGENCY MEDICAL SERVICES CORPORATION; AMERICAN MEDICAL RESPONSE, INC.;JIM POLLARD; MARVIN HEWATT ENTERPRISES, INC.; CHEVRON U.S.A., INC.; JOHN DOES 1-10 DEFENDANTS

CAUSE NO. 3:12-CV-227-CWR-FKB

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

Dated: November 13, 2012

ORDER

Before the Court are the plaintiff's motion to remand [Docket No. 6], the plaintiff's motion for leave to amend the complaint to substitute parties [Docket No. 15], defendant Marvin Hewatt Enterprises' motion to dismiss [Docket No. 17], defendant Chevron's motion to dismiss [Docket No. 20], and defendant American Medical Response's motion for leave to file a sur-reply [Docket No. 27]. The motions are fully briefed and ready for review.

I. Factual and Procedural History

On April 11, 2010, Michael Olowo-Ake, Jr., was fatally shot at the gas station located at 5300 North State Street, Jackson, Mississippi. Docket No. 1-2, at 5. His father, on behalf of Olowo-Ake's estate, filed this suit in state court alleging, inter alia, that the gas station's employees failed to call 911 and that nearby EMTs refused to treat his son's injuries for an undefined period of time. Id. at 5-7. He claims that those omissions and delays injured his son and ultimately resulted in his son's death. Id. at 7. The defendants named in the complaint were Emergency Medical Service Corporation, American Medical Response, Inc. (AMR), Jim Pollard, Marvin Hewatt Enterprises, Inc., Chevron U.S.A., Inc., and John Does 1-10. Id. at 1.

The suit was subsequently removed to this Court by AMR. Docket No. 1. AMR argued that diversity jurisdiction was established because all of the proper parties were citizens of states otherthan Mississippi and the amount in controversy exceeded $75,000. Id. at 3. Defendant Jim Pollard, who is a citizen of Mississippi, was alleged to be improperly joined. Id. at 3-4. All defendants except Pollard joined in the notice of removal. Docket No. 1-4. The present motions followed.

II. Standard of Review

A. The Improper Joinder Doctrine

"There should be little need for a reminder that federal courts are courts of limited jurisdiction, having only the authority endowed by the Constitution and that conferred by Congress." Halmekangas v. State Farm Fire and Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010) (citation and quotation marks omitted). "The district courts have original jurisdiction of civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of costs and interest, and is between citizens of different states." Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 248 (5th Cir. 2011) (citing 28 U.S.C. § 1332). Here, it is undisputed that the amount in controversy exceeds $75,000. The question is complete diversity of the proper defendants.

The Fifth Circuit has stated succinctly the law of improper joinder:

The improper joinder doctrine constitutes a narrow exception to the rule of complete diversity. We have previously stated, but it bears emphasizing again, that the burden of demonstrating improper joinder is a heavy one. To establish a claim for improper joinder, the party seeking removal must demonstrate either (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Under this second prong, we examine whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.

McDonal v. Abbott Laboratories, 408 F.3d 177, 183 (5th Cir. 2005) (citations, quotation marks, and brackets omitted). As in McDonal, here AMR's allegations of improper joinder fall under the second prong only. Docket No. 1, at 2.

"A district court should ordinarily resolve a[n] improper joinder by conducting a Rule 12(b)(6)-type analysis." Id. at 183 n.6. "That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry." Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc) (citations omitted).

"[A]ny contested issues of facts and any ambiguities of state law must be resolved in the [non-removing party's] favor." Cuevas, 648 F.2d at 249 (citation omitted). "[B]ecause removal raises significant federalism concerns, the removal statute is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand." Church v. Nationwide Ins. Co., No. 3:10-CV-636, 2011 WL 2112416, *2 (S.D. Miss. May 26, 2011) (quoting Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008)); see Williams v. Brown, No. 3:11-CV-273, 2011 WL 3290394, *3 (S.D. Miss. July 28, 2011) ("Doubts about whether federal jurisdiction exists following removal must be resolved against a finding of jurisdiction.") (citations and quotation marks omitted).

B. The Motion to Dismiss Standard

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court accepts the plaintiff's factual allegations as true and makes reasonable inferences in the plaintiff's favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain "more than an unadorned, the defendant-unlawfully-harmed-me accusation," but need not have "detailed factual allegations." Id. (citation and quotation marks omitted). The plaintiff's claims must also be plausible on their face, which means there is "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The Court need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (citation omitted).

Since Iqbal, the Fifth Circuit has stated that the Supreme Court's "emphasis on the plausibility of a complaint's allegations does not give district courts license to look behind those allegations and independently assess the likelihood that the plaintiff will be able to prove them at trial." Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011).

Because this case is presently proceeding in diversity, the applicable substantive law is that of the forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011); Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 228 (5th Cir. 2007). State law is determined by looking to the decisions of the state's highest court. St. Paul Fire and Marine Ins. Co. v. Convalescent Services, Inc., 193 F.3d 340, 342 (5th Cir. 1999).

III. Discussion

A. The Plaintiff's Motion to Remand

The first question is whether AMR has established that the plaintiff has no possibility of recovering against in-state defendant Pollard.

The plaintiff's complaint asserted that Pollard "was responsible for, among other things, overseeing AMR's Jackson, MS operation and setting policies/procedures related to emergency medical technicians or drivers on April 11, 2010." Docket No. 1-2, at 2. Pollard was alleged to be liable for "negligent hiring, retention, supervision, and/or control" over the EMTs that treated (or failed to treat) the plaintiff's son that night. Id. at 9-10.

With its notice of removal, though, AMR attached an affidavit from Pollard which stated that he is AMR's public affairs and marketing manager. Docket No. 1-3. Pollard denied making policies or procedures, or training or supervising employees on patient or medical response issues; instead, he claimed to train employees on how to conduct community outreach. Id. His involvement in this matter was limited to answering media questions after the shooting, he said. Id.

The plaintiff's argument for remand first emphasizes the undisputed fact that Pollard is a citizen of Mississippi. Docket No. 6, at 2. He then asserts that Pollard "should be" responsible for AMR's EMT training policies. Id. at 2-3. He claims Pollard is liable for failing to train the EMTs who treated the plaintiff's son that night, because the EMTs did not adequately respond to the call, did not adequately respond "to citizens who approach them while waiting in an ambulance," and did not "understand[] the impact of their failure to respond to citizen calls . . . on the Hinds County community." Id. at 3.¹

Pollard's uncontradicted affidavit is sufficiently narrow to warrant piercing the pleadings. See Smallwood, 385 F.3d at 573. The affidavit shows that the plaintiff has not stated a plausible claim for relief against Pollard.

There is no reasonable basis to predict that AMR's media and marketing supervisor can be held responsible for a lack of training or supervision of EMTs working in the field, when he had neither knowledge of nor responsibility for the EMTs. See Kemp v. CTL Distribution, Inc., 440 F. App'x 240, 246 (5th Cir. 2011) (unpublished) (dismissing improperly joined manager who had no knowledge of or responsibility for the dangerous condition at issue); Guillory v. PPG Indus., Inc.,434 F.3d 303, 312 (5th Cir. 2005) (same). Pollard's role in training AMR employees on outreach is not sufficiently related to training EMTs how to respond appropriately to medical emergencies. Even if both take place in the "community," media duties are materially different from medical duties.

As a result, Pollard will be dismissed.

B. The Plaintiff's Motion to Amend and Substitute

While that would appear to settle the jurisdictional question,...