Coghlan et al v. Nexion Health at Cherry Creek, Inc.
| Kristy (I) Coghlan and Kristy Coghlan |
| Nexion Health at Cherry Creek, Inc. and Nexion Health at Cherry Creek, Inc. doing business as Cherry Creek Nursing Center |
| 1:2018cv02991 |
| November 20, 2018 |
| US District Court for the District of Colorado |
| William J Martinez |
| Kristen L Mix |
| P.I.: Other |
| 28 U.S.C. § 1332 |
| Plaintiff |
Docket Report
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| Filing 28 CERTIFICATE of Service pursuant to 27 Order.(afran) |
Filing 27
ORDER: Before the Court is Plaintiff's Motion to Remand to State Court #15 . "[T]he burden is upon Defendant, as the removing party, to demonstrate the Court has jurisdiction to hear Plaintiff's claim. It must satisfy its burden by [proving the facts on which jurisdiction turns by] a preponderance of evidence." Mem'l Health Sys. v. Aetna Health, Inc., 730 F. Supp. 2d 1289, 1293 (D. Colo. 2010). The crucial jurisdictional factual question is whether or not Defendant maintains its principal place of business in Colorado. See Hertz Corp v. Friend, 559 U.S. 77, 80 (2010) ("the [principal place of business is] where a corporation's officers direct, control, and coordinate the corporation's activities"). Plaintiff points out the following: (1) on the records of the Colorado Secretary of State, Defendant lists its "principal office street address" as a location in Aurora, Colorado, although its "principal office mailing address" is a location in Sykesville, Maryland; (2) Defendant has twice represented in Colorado state court that Aurora, Colorado, is its principal place of business (including an express denial of Maryland as the principal place of business); and (3) Defendant is not registered to do business in Maryland. Defendant responds that Sykesville, Maryland, is its principal place of business. In support, it attaches a highly cursory declaration from the assistant secretary to the corporation claiming that all of Defendant's high-level decisionmakers are "based out of" or "work through" the Maryland office, and that none are "located" in Colorado. Defendant also asserts, in attorney argument only and not by way of declaration, that previous representations in Colorado state court were made by "an insurance retained attorney." Defendant does not say why this matters. Defendant does not say that this insurance retained attorney was misinformed. Defendant only says that this attorney's representations were "inconsistent" with answers filed by Defendant in other state-court cases admitting that Defendant is a Delaware corporation. Actually, there was no inconsistency because no party contests that Defendant is "a Delaware corporation" in the sense of being incorporated there. That still does not answer the question of its principal place of business. Finally, Defendant points out that this District has twice presided over cases involving Defendant through diversity jurisdiction. But in those cases, Defendant's principal place of business was an unexamined, unchallenged assertion. In sum, Defendant's response is by turns irrelevant, vague, inaccurate, and evasive, and demonstrates that Defendant cannot meet its burden to prove the crucial jurisdictional fact by a preponderance of the evidence. Thus, diversity jurisdiction does not exist (because Plaintiff and Defendant are both deemed Colorado citizens), and, more importantly, Defendant is statutorily precluded from removing: "A civil action otherwise removable solely on the basis of 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." 28 U.S.C. 1441(b)(2). The Court accordingly GRANTS Plaintiff's Motion to Remand to State Court. Defendant's Motion to Compel Arbitration #14 is DENIED WITHOUT PREJUDICE for lack of jurisdiction. The Clerk shall REMAND this case to Arapahoe County District Court, and shall terminate this action. The parties shall bear their own fees and costs. SO ORDERED by Judge William J. Martinez on 12/31/2018. Text Only Entry (wjmlc1)
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| Filing 26 REPLY to Response to #14 MOTION to Compel Arbitration filed by Defendant Nexion Health at Cherry Creek, Inc.. (Attachments: #1 Exhibit C - PASRR (1), #2 Exhibit D - PASRR (2), #3 Exhibit E - Admission Agreement, #4 Exhibit F - Resident Authorization of Benefits and Release of Information, #5 Exhibit G - Business Office Administration Form, #6 Exhibit H - Affidavit of Diana McDonald)(Gelman, David) |
| Filing 25 REPLY to Response to #15 MOTION to Remand to State Court filed by Plaintiff Kristy Coghlan. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3)(Kuhn, Michael) |
| Filing 24 RESPONSE to #14 MOTION to Compel Arbitration filed by Plaintiffs Kristy Coghlan, Kristy (I) Coghlan. (Attachments: #1 Exhibit 1 - Declaration of Taylor Coghlan)(Sar, Jonathan) |
| Filing 23 BRIEF in Opposition to #15 MOTION to Remand to State Court filed by Defendant Nexion Health at Cherry Creek, Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I)(Gelman, David) |
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Filing 22
ORDER SETTING SCHEDULING/PLANNING CONFERENCE By Magistrate Judge Kristen L. Mix on 12/14/18. Scheduling Conference set for 3/20/2019 9:30 AM in Courtroom A401 before Magistrate Judge Kristen L. Mix. (Attachments: #1 Attachment 1, #2 Attachment 2) (lgale, )
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| Filing 21 CORPORATE DISCLOSURE STATEMENT identifying Corporate Parent Nexion Health, Inc., Corporate Parent Nexion Health Realty, Inc. for Nexion Health at Cherry Creek, Inc.. (Gelman, David) |
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Filing 20
ORDER: Counsel for the parties and all counsel who may later enter an appearance shall review and familiarize themselves with the undersigned's Revised Practice Standards (as most recently revised effective December 1, 2018 and as they may be amended from time to time), which may be downloaded #here. SO ORDERED by Judge William J. Martinez on 12 /5/2018. Text Only Entry (wjmsec, )
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Filing 19
ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix. Magistrate Judge Mix, or such other Magistrate Judge who may in the future be reassigned this case, is designated to conduct NDISPO proceedings pursuant to 28 U.S.C. 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the Magistrate Judge or on the request of the parties by motion, the court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. SO ORDERED by Judge William J. Martinez on 12/5/2018. Text Only Entry (wjmsec, )
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| Filing 18 MEMORANDUM RETURNING CASE by Senior Judge Blackburn. This case is randomly reassigned to Judge William J. Martinez. All future pleadings should be designated as 18-cv-02991-WJM. (athom, ) |
| Filing 17 CASE REASSIGNED pursuant to #16 Minute Order. All parties do not consent. This case is randomly reassigned to Judge Robert E. Blackburn. All future pleadings should be designated as 18-cv-02991-REB. (Text Only Entry) (jgonz, ) |
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Filing 16
MINUTE ORDER re: #13 Consent/Non-Consent to Jurisdiction of Magistrate Judge filed by Nexion Health at Cherry Creek, Inc. IT IS HEREBY ORDERED that this case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1(c)(8) and D.C.COLO.LCivR 40.1(a), by Magistrate Judge Kristen L. Mix on 12/3/2018. (jgonz, )
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| Filing 15 MOTION to Remand to State Court by Plaintiffs Kristy Coghlan, Kristy (I) Coghlan. (Attachments: #1 Exhibit 1 - Periodic Report)(Swan, Andrew) |
| Filing 14 MOTION to Compel Arbitration by Defendant Nexion Health at Cherry Creek, Inc.. (Attachments: #1 Exhibit A - Arbitration Agreement, #2 Exhibit B - Espinosa v. Nexion Health Inc.)(Gelman, David) |
| Filing 13 CONSENT to Jurisdiction of Magistrate Judge by Defendant Nexion Health at Cherry Creek, Inc. All parties do not consent.. (Gelman, David) |
| Filing 12 NOTICE of Entry of Appearance by Sean Bradley Leventhal on behalf of Kristy Coghlan, Kristy (I) CoghlanAttorney Sean Bradley Leventhal added to party Kristy Coghlan(pty:pla), Attorney Sean Bradley Leventhal added to party Kristy (I) Coghlan(pty:pla) (Leventhal, Sean) |
| Filing 11 NOTICE of Entry of Appearance by Jonathan Shawn Sar on behalf of Kristy Coghlan, Kristy (I) CoghlanAttorney Jonathan Shawn Sar added to party Kristy Coghlan(pty:pla), Attorney Jonathan Shawn Sar added to party Kristy (I) Coghlan(pty:pla) (Sar, Jonathan) |
| Filing 10 NOTICE of Entry of Appearance by Andrew Edward Swan on behalf of Kristy Coghlan, Kristy (I) CoghlanAttorney Andrew Edward Swan added to party Kristy Coghlan(pty:pla), Attorney Andrew Edward Swan added to party Kristy (I) Coghlan(pty:pla) (Swan, Andrew) |
| Filing 9 NOTICE of Entry of Appearance by Michael Dickson Kuhn on behalf of Kristy Coghlan, Kristy (I) CoghlanAttorney Michael Dickson Kuhn added to party Kristy Coghlan(pty:pla), Attorney Michael Dickson Kuhn added to party Kristy (I) Coghlan(pty:pla) (Kuhn, Michael) |
| Filing 8 NOTICE of Entry of Appearance by Paul Forrest Lewis on behalf of Kristy Coghlan, Kristy (I) CoghlanAttorney Paul Forrest Lewis added to party Kristy Coghlan(pty:pla), Attorney Paul Forrest Lewis added to party Kristy (I) Coghlan(pty:pla) (Lewis, Paul) |
| Filing 7 STATE COURT ORDER Granting: Unopposed Motion for Extension of Time to Respond to Plaintiff's Complaint by Defendant Nexion Health at Cherry Creek d/b/a Cherry Creek Nursing Center by Arapahoe County District Court Judge John Lawrence Wheeler on 11/14/2018. (rroge, ) |
| Filing 6 AFFIDAVIT/RETURN of Service of Summons and Complaint upon Nexion Health at Cherry Creek, Inc. on 10/24/2018 (rroge, ) |
| Filing 5 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (rroge, ) Modified on 11/21/2018 to correct main document (rroge, ). |
| Filing 4 FIRST AND FINAL NOTICE TO ALL ATTORNEY(S) AND UNREPRESENTED PARTIES IN REMOVED, TRANSFERRED, OR OTHER CASES. To receive any further notice in a case removed or transferred to this court, or special matters including discovery disputes, bankruptcy appeals, or withdrawls of reference, Multi-district litigation (MDL), etc., all attorneys and unrepresented parties must enter an appearance under D.C.COLO.LAttyR 5(a). An attorney must be an active member of this court's bar and be in good standing in accordance with D.C.COLO.LAttyR 3. A waiver of the fee for bar admission may apply in limited situations. (rroge, ) |
| Filing 3 Case assigned to Magistrate Judge Kristen L. Mix. Text Only Entry. (rroge, ) |
| Filing 2 COMPLAINT and Jury Demand against Nexion Health at Cherry Creek, Inc., filed by Kristy (I) Coghlan, Kristy Coghlan.(rroge, ) |
| Filing 1 NOTICE OF REMOVAL by Nexion Health at Cherry Creek Inc d/b/a Cherry Creek Nursing Center from Arapahoe County District Court, Case Number 2018CV32463. (Filing fee $ 400, Receipt Number 1082-6405668), filed by Nexion Health at Cherry Creek Inc d/b/a Cherry Creek Nursing Center. (Attachments: #1 Exhibit A - Complaint, #2 Exhibit B - State Civil Case Cover Sheet, #3 Exhibit C - Civil Summons, #4 Exhibit D - Return of Service, #5 Exhibit E - Delay Reduction Order, #6 Exhibit F - Order - Case Management, #7 Exhibit G - Motion for Extension of Time, #8 Exhibit H - Order Granting Motion for Extension of Time, #9 Exhibit I - Notice of Filing Notice of Removal, #10 Exhibit J - Docket for 2018CV32463, #11 Exhibit K - Colorado Secretary of State listing for Defendant, #12 Civil Cover Sheet)(Gelman, David) |
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