United States District Court, D. New Mexico
DANNY SUAZO, Personal Representative of the Wrongful Death Estate of Lorenzo A. Suazo, deceased, Plaintiff,
TAOS LIVING CENTER, LLC, TAOS HOLDING COMPANY, LLC, PARENTIS SALUS PROVIDEO, LLC DANIEL DAIGLE, and PAUL REID, Defendants.
MEMORANDUM OPINION AND ORDER OF REMAND
14, 2018, Plaintiff Danny Suazo, personal representative of
the wrongful death estate of Lorenzo A. Suazo (Plaintiff),
served Defendants Taos Living Center, LLC (the Center), Taos
Holding Company, LLC (THC), Parentis Salus Provideo, LLC
(Parentis), Daniel Daigle (Daigle), and Paul Reid (Reid)
(together, Defendants) with the COMPLAINT FOR WRONGFUL DEATH,
NEGLIGENCE, AND PUNITIVE DAMAGES (Doc. No. 1-1) (Complaint).
On July 13, 2018, Defendants removed this case from the First
Judicial District Court, Santa Fe County, New Mexico. See
NOTICE OF REMOVAL BY DEFENDANTS TAOS LIVING CENTER, LLC,
PARENTIS SALUS PROVIDEO, LLC, DANIEL DAIGLE, AND PAUL REID
PURSUANT TO 28, U.S.C. §§ 1331 AND 1441(a) (Doc.
No. 1) (Notice). On August 6, 2018, Plaintiff moved to
remand the case. See PLAINTIFF'S MOTION TO REMAND AND FOR
COSTS (Doc. No. 13) (Motion). The Motion is fully briefed.
See DEFENDANTS TAOS LIVING CENTER, LLC, PARENTIS SALUS
PROVIDEO, LLC, DANIEL DAIGLE, AND PAUL REID'S RESPONSE IN
OPPOSITION TO PLAINTIFF'S MOTION TO REMAND (Doc. No. 22)
(Response); and PLAINTIFF'S REPLY IN SUPPORT OF HIS
MOTION TO REMAND AND FOR COSTS (Doc. No. 23) (Reply). The
Court lacks subject matter jurisdiction over Plaintiff's
claims; therefore, the Court will grant the Motion. In
addition, the Court will grant Plaintiff's request for
costs and attorneys' fees.
STANDARD OF REVIEW
28 U.S.C. § 1441(a) provides that “any 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 for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a). Hence, a case originally filed in
state court “may be removed …only if,
‘federal subject-matter jurisdiction would exist over
the claim.'” Firstenberg v. City of Santa
Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (citation
omitted). Because federal courts are courts of limited
jurisdiction, there is a presumption against removal
jurisdiction, which the defendant seeking removal must
overcome. Dutcher v. Matheson, 733 F.3d 980, 984
(10th Cir. 2013). In other words, “[t]he burden of
establishing subject-matter jurisdiction is on the party
asserting jurisdiction” Montoya v. Chao, 296
F.3d 952, 955 (10th Cir. 2002), and “[a]ll doubts are
to be resolved against removal.” Fajen v. Found.
Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982).
are three ways to establish federal question jurisdiction.
First and foremost, a court has federal question jurisdiction
when a plaintiff pleads a cause of action that is created by
federal law. Grable & Sons Metal Products, Inc. v.
Darue Engineering & Mfg., 545 U.S. 308, 312 (2005).
Second, a plaintiff may raise a federal question claim when a
right of action is implied from a statute, “such as the
right of private victims of discrimination to sue for
violations of Title IX.” Cannon v. University of
Chicago, 441 U.S. 677, 688, (1979). Third,
“[t]here is ... another longstanding, if less
frequently encountered, variety of federal ‘arising
under' jurisdiction ....” Grable, 545 U.S.
at 312. “[I]n certain cases federal-question
jurisdiction will lie over state-law claims that implicate
significant federal issues.” Id. However, the
mere presence of a federal issue embedded in a state law
claim does not open the door to federal court. Id.
at 314. The court must ask-does a state law claim
“necessarily raise a stated federal issue, actually
disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of
federal and state judicial responsibilities.” Id.
See also Roberts v. Woodcrest Manor Care Ctr., CIV.A.
12-200-DLB, 2012 WL 6652502, at *8 (E.D. Ky. Dec. 20, 2012)
(unpublished) (remanding case asserting a claim of negligence
per se relying in part on violations of the FNHRA).
the plaintiff is the master of the complaint, and if the
plaintiff files a complaint in state court and pleads only
state-law causes of action, the case is not removable to
federal court based on federal question jurisdiction.
Hansen v. Harper Excavating, Inc., 641 F.3d 1216,
1220 (10th Cir. 2011). “The plaintiff can elect the
judicial forum-state or federal-based on how he drafts his
complaint. Although he may not circumvent federal
jurisdiction by omitting federal issues that are essential to
his ... claim ... he can nevertheless avoid federal
jurisdiction by exclusive reliance on state law.”
Firstenberg, 696 F.3d at 1223 (internal quotation
marks and citation omitted).
argue that although Plaintiff's claims are drafted as
state law wrongful death and negligence claims, Plaintiff has
actually asserted claims for violations of federal statutes
applicable to nursing facilities. Alternatively, Defendants
assert that Plaintiff's state law claims implicate
significant federal issues under those statutes; and
therefore, removal was proper.
Allegations in the Complaint
January 25, 2017, the First Judicial District Court, Santa Fe
County, New Mexico appointed Plaintiff Danny Suazo as
Personal Representative to Pursue Wrongful Death Claim in
Cause No. D-101-CV 2016-02989. (Compl. ¶ 3.) Plaintiff
alleges that from about August 12, 2016 to September 25, 2016
Plaintiff's father, Lorenzo Suazo (Mr. Suazo), resided at
Taos Living Center (the TLC), a nursing facility located in
Santa Fe County, New Mexico. (Id. ¶ 20.)
Plaintiff claims that while residing at the TLC, Mr. Suazo
suffered injuries from medication errors, infections,
malnutrition, bedsores, [and] sepsis[.]” (Id.
¶ 21 a.-i.) As a result of the negligent care at the
TLC, Mr. Suazo was moved to a hospital where he died on
October 5, 2016. (Id. ¶ 22.)
Count I entitled WRONGFUL DEATH, Plaintiff claims that
Defendants negligently caused Mr. Suazo's death.
(Id. ¶ 25.) Plaintiff alleges he is entitled to
recover all damages available under the New Mexico Wrongful
Death Act, NMSA 1978 § 41-2-1, including damages for the
loss of enjoyment of life, pain and suffering, the reasonable
expenses of necessary medical care, and the expenses of Mr.
Suazo's funeral and burial. (Id.) Plaintiff also
claims that Defendants actions were malicious, willful,
reckless, or in wanton disregard of Mr. Suazo's needs;
therefore, Defendants are liable for punitive damages.
(Id. ¶ 27.)
Count II claim entitled NEGLIGENCE, Plaintiff alleges that
Defendants breached their duty to Mr. Suazo to provide care,
treatment, and services within the standards of care required
of nursing facilities. (Id. ¶ 29.)
Specifically, Plaintiff alleges that Defendants (1) failed to
supervise nursing personnel to ensure Mr. Suazo received
appropriate nursing care; (2) failed to provide Mr. Suazo
with basic and necessary care; (3) failed to treat Mr. Suazo
with kindness and respect; (4) failed to notify Mr.
Suazo's physician of significant changes in his health
status; (5) falsely represented the quality of care and
services provided to Mr. Suazo; (6) failed to adopt adequate
policies and procedures for documenting and responding to
complaints regarding the misconduct of Defendants'
employees; (7) failed to adequately train employees; (8)
failed to hire an adequate number of competent nursing
personnel; and (9) failed to adequately supervise nursing
personnel to ensure Mr. Suazo received adequate nutrition,
sanitation, and health care. (Id. ¶ 31 a.-p.)
alleges that the Defendants failed to ensure that “the
rules and regulations … promulgated in the New Mexico
Nursing Home Residents Rights Act 22.214.171.124 NMAC (2005)
… and federal laws and regulations, were consistently
complied with on an ongoing basis[.]” (Id.
¶ 31 o. (i).) Plaintiff asserts that Defendants
“violated state and federal laws and regulations, which
set forth … the … minimum standards” of
care. Plaintiff cites provisions in the Medicare Act, 42
U.S.C. § 1395 et seq., the Federal Nursing Home Reform
Amendments (FNHRA), 42 U.S.C. § 1396r, and the
regulations promulgated under those statutes. (Id.
¶¶ 36 a.-qq.) For example, Plaintiff alleges that
under federal law Defendants were required to “provide
‘nursing services and specialized rehabilitative
services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each
resident.”' (Id. ¶ 36 c. (quoting 42
U.S.C. §§ 1395i-3(b)(4)(A)(i) and
1396r-3(b)(4)(A)(i)). Plaintiff asserts that under federal
regulations Defendants were required to ‘“care
for … residents in a manner and in an environment that
promotes maintenance or enhancement of each resident's
quality of life.”' (Id. ¶ 36 q.
(quoting 42 C.F.R. § 483.15)). Plaintiff alleges that
under New Mexico law Defendants were prohibited from
neglecting a nursing home resident, which includes
‘“failure to provide any treatment, service,
care, medication or items that is necessary to maintain the
health or safety of a resident.'” (Id.
¶ 36 m (i) (quoting NMSA 1978 § 30-47-3(F)(1)).
These quoted paragraphs of the Complaint are just a few of
the numerous federal and state laws and regulations cited by
Plaintiff to illustrate Defendants' negligence. (See
generally Compl. ¶¶ 28-43.) Plaintiff contends
that the applicable statutes and regulations were enacted to
benefit a class of persons including Mr. Suazo; and
therefore, Defendants' actions or omissions in violation
of those statutes and regulations constituted negligence per
se. (Id. ¶¶ 39-41.)
Count III, Plaintiff asserts a claim for punitive damages
alleging that Defendants' actions and omissions were
grossly negligent, deliberately indifferent, willful, wanton,
reckless, malicious, or intentional. Finally, Plaintiff prays
for judgment against Defendants for compensatory damages, all
general and special damages caused by Defendants'
conduct, costs of litigation, punitive damages, ...