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Gros v. Baton Rouge Rehabilitation Hospital, L.L.C.

United States District Court, M.D. Louisiana

June 18, 2019

CYNTHIA GROS
v.
BATON ROUGE REHABILITATION HOSPITAL, L.L.C. D/B/A BATON ROUGE REHAB HOSPITAL

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         This is a civil action involving claims for personal injury damages by Plaintiff, Cynthia Gros ("Plaintiff), against Defendant, Baton Rouge Rehabilitation Hospital d/b/a Baton Rouge Rehab Hospital ("Defendant").[1] On or about March 10, 2014, Plaintiff filed her Petition for Damages ("Petition") against Defendant in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.[2] In general, Plaintiff alleges that she suffered injuries, including a fractured hip, due to Defendant's negligence when Plaintiff was struck by a defective restroom stall door during her attempt to use the restroom in Defendant's rehabilitation facility.[3]

         On June 13, 2019, Defendant removed the matter to this Court on the basis of federal question jurisdiction under 28 U.S.C. § 1331.[4] The Notice of Removal asserts that, for the first time since the commencement of the state court action, federal question jurisdiction is now present based on the representations made in Plaintiffs expert report[5] (the "Report"), which Defendant contends was produced on May 31, 2019.[6] The Report, authored by Mchael A. Stein, PE, states that an evaluation of Defendant's facility, including the stall and door, was conducted at the request of Plaintiff.[7] The Report's Executive Summary opines that:

The condition of the door as observed on June 20, 2018 does not comply with the requirements of the 2010 American's with Disabilities Act (ADA) Standards for Accessible Design as published by the United States Department of Justice on September 15, 2010. The condition of the door also does not comply with the earlier 1994 ADA Standards for Accessible Design published on July 1, 1994...Baton Rouge Rehab Hospital failed to maintain the door in a properly operating condition.[8]

         The Report's Conclusion further opines:

In summary, in my opinion, the Baton Rouge Rehab Hospital failed to comply with Federal law and the 1994 and 2010 Standards by not properly maintaining the water closet partition and door in the women's changing room in the hydrotherapy area.[9]

         The Notice of Removal alleges that Plaintiffs Petition contained "absolutely no allegations that defendant had violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq." However, by Plaintiffs production of the Report: "plaintiff has alleged that Baton Rouge Rehabilitation Hospital has violated the [ADA]."[10] Furthermore, Defendant contends:

Baton Rouge Rehabilitation Hospital contends that the expert report completed on behalf of plaintiffs expert, Michael A. Stein, which notified defendant for the first time of plaintiffs new allegations of ADA violations, constitutes other paper within the meaning of 28 U.S.C.A. § 1446 (b)(3). In Gibson v. Clean Harbors Envtl. Servs., Inc., the United States Court of Appeals, Eighth Circuit, determined that an expert report constituted "other paper" within the meaning of 28 U.S.C.A. § 1446 (b)(3), such that the thirty (30) days removal period was triggered upon receipt of the expert report. 840 F.3d 515, 522(8thCir. 2016).[11]

         A defendant may remove any civil action brought in a state court of which the district courts of the United States have original jurisdiction[12] Pursuant to 28 U.S.C. § 1331, this Court has "original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States." A federal question exists when there "appears on the face of the complaint some substantial, disputed question of federal law, "[13] however, "[u]nder the longstanding well-pleaded complaint rule [] a suit 'arises under' federal law 'only when the plaintiffs statement of his own cause of action shows that it is based upon [federal law].'"[14] Whether a case is removable on the basis of federal question jurisdiction is "determined by the allegations of plaintiffs 'well-pleaded complaint' as of the time of removal."[15] As this Court recently explained, "because the plaintiff is the master of his complaint, even where both federal and state remedies are available on a given set of facts, there will be no basis for removal on federal question jurisdiction if the plaintiff elects in the state court petition to proceed exclusively under state law."[16]

         Plaintiffs Petition specifically asserts a Louisiana state law cause of action against Defendant solely for negligence: "Petitioner alleges that Defendant was guilty of negligence, which acts of negligence were the cause of the injuries and damages sustained by Petitioner..., "[17]On the face of the Petition, Plaintiff does not assert any federal causes of action or rights to relief under federal law, including the ADA against Defendant. Nevertheless, Defendant premises federal question jurisdiction on Plaintiff s expert Report, which opines that Defendant violated the ADA.[18] However, Plaintiff is the master of her complaint, and after five years of litigation, she has not asserted a federal claim on the face of the Petition even though a federal remedy may be available on the facts. The Court will not assume that Plaintiff is asserting a federal claim merely because her expert Report alludes to a violation of a federal law, particularly because Plaintiff could use the report to establish the state law claim of negligence that she actually pled.[19] As it stands, Defendant has failed to assert any applicable authority to support removal on the basis that an expert report references a federal law.[20] Accordingly, Defendant must properly identify a basis for this Court to exercise federal question jurisdiction pursuant to 28 U.S.C. § 1331 or move to withdraw the Notice of Removal.[21]

         Although Plaintiff has not filed a Motion to Remand, the Court sua sponte raises the issue of whether it may exercise federal question jurisdiction in this matter.[22]

         Accordingly, IT IS HEREBY ORDERED that, on or before June 25, 2019, Defendant Baton Rouge Rehabilitation Hospital d/b/a Baton Rouge Rehab Hospital shall file a memorandum and supporting evidence that addresses whether this Court has federal question subject matter jurisdiction, as well as the basis for the exercise of such jurisdiction, or alternatively, a motion to withdraw its Notice of Removal.

         IT IS FURTHER ORDERED that on or before July 5, 2019, Plaintiff Cynthia Gros shall file either (1)a Notice stating that Plaintiff does not object to Defendant's assertion that Defendant has established federal question subject matter jurisdiction under 28 U.S.C. ยง 1331 and an ...


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