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Suazo v. Taos Living Center, LLC

United States District Court, D. New Mexico

October 3, 2018

DANNY SUAZO, Personal Representative of the Wrongful Death Estate of Lorenzo A. Suazo, deceased, Plaintiff,


         On June 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).[1] 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.


         Title 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).

         There 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).

         Generally, 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).

         Defendants 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.


         A. Allegations in the Complaint

         On 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.)

         In 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.)

         In the 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.)

         Plaintiff alleges that the Defendants failed to ensure that “the rules and regulations … promulgated in the New Mexico Nursing Home Residents Rights Act 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.)

         In 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, ...

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