MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of plaintiff Lawrence Hill, by and through Letha Kincaid and Eugene Hill, to remand pursuant to 28 U.S.C. § 1447. Defendants Beverly Enterprises-Mississippi, Inc. and Beverly Health and Rehabilitation (collectively, Beverly), along with James C. Landers and David Devereaux, have responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments submitted by the parties, concludes that plaintiff's motion is well taken and should be granted.
On September 17, 2002, 81-year old Lawrence Hill, suffering from Alzheimer's dementia and no longer competent to handle his own affairs, was admitted to Beverly Healthcare-Northwest, a nursing home owned and operated by the Beverly defendants in Jackson, Mississippi. Three months later, on December 28, 2002, he brought the present action, through his next friends, in the Circuit Court of Hinds County, Mississippi against the Beverly defendants, against David Devereaux and James C. Landers, licensees of the facility, and against Alicha Lindsay, administrator of the facility, alleging that he had suffered "catastrophic injuries, disfigurement, extreme pain, suffering and mental anguish" while under defendants' care, supervision and treatment during his residency at the nursing home, for which he sought to recover
In their complaint, plaintiffs allege that defendants Lindsay, Landers and Devereaux were responsible for the management and supervision of the facility, that they failed to properly hire, supervise and train nursing personnel, and they failed to ensure that adequate records were prepared and maintained. In their notice of removal and response to plaintiff's motion to remand, defendants submit that Lindsay, the nursing home administrator, and Landers and Dereveaux, as licensees of the nursing home, can have no personal liability to plaintiff because there is no allegation or proof by plaintiff that these defendants had any direct or personal participation in Lawrence Hill's care and because plaintiff's allegations do not attempt to link their alleged negligence in management and supervision to Mr. Hill's injuries.
Obviously, "liability cannot attach where a defendant does not, as a legal matter, owe a duty of care to the one allegedly injured," Box v. Beverly Health and Rehabilitation Servs., Inc. et al., Civil Action No. 3:03CV22-SAA, slip op. at 5 (N.D.Miss. May 30, 2003), and thus, the first question that presents itself is whether it can be said that a reasonable possibility exists under Mississippi law that the nursing home administrator or licensees owed a duty of care to Lawrence Hill. Assuming the answer is yes, the questions
As the court recognized in Box, there is no Mississippi statute or case law specific to the question of whether a nursing home administrator owes a legal duty of care to the residents under his supervision. Box, No. 3:03CV22-SAA, slip op. at 6. However, in the court's opinion, applying general principles of agency law to the allegations of plaintiff's complaint, this issue must be resolved in favor of finding that such a duty does exist.
It is well settled under Mississippi law that an employee, officer or director of a corporate entity incurs liability only when he "directly participates in or authorizes the commission of a tort." Hart v. Bayer Corp., 199 F.3d 239, 247 (5th Cir.2000). Defendants here argue that since plaintiffs do not allege that the defendant administrator or licensees directly participated in the care provided to Lawrence Hill, or that they personally directed or authorized the commission of the torts alleged to have been committed by employees of the facility, it follows that they cannot be held personally liable.
Although Magistrate Judge Allen Alexander, in the Northern District of Mississippi, denied the plaintiff's motion to remand in Box, supra, she did so because the plaintiff, in response to evidence from the defendants, had failed to present his own evidence that his decedent's death was connected to any breach of duty, i.e. "faulty, tortious management," by the nursing home administrator.
Judge Bramlette had implicitly recognized this, as well, in Estate of Willie Belle Barham v. Shady Lawn Nursing Home, Inc., Civil Action No. 5:01CV129BrS (S.D.Miss. Oct. 23, 2001), when he remanded a case brought against a nursing home owner and the nursing home's resident/nondiverse administrator. In determining that there existed a possibility of recovery against the administrator, Judge Bramlette recognized that under Mississippi law, it is "clear that where a corporate agent is centrally involved in the negligent execution of managerial duties that allegedly result in a plaintiff's injury or death, a cause of action lies against the agent, regardless of his or her status within the corporation." Id., slip op. at 6 (citing Mozingo v. Correct, 752 F.2d 168 (5th Cir.1985)). It followed, he observed, that if the plaintiff's complaint included allegations of the administrator's direct participation in any of the acts and omissions alleged to have caused the decedent's injuries and death, then she could be liable under Mississippi law. He noted that the complaint actually did set forth allegations demonstrating that the administrator had directly participated in the commission of a tort, in that it alleged that she had negligently committed certain acts and omissions that were within her areas of responsibility, and that her negligent execution of her responsibilities as administrator had proximately led to the decedent's injuries. That, he concluded, was enough to show that the possibility of a successful claim under Mississippi law exists.
Judge Wingate likewise remanded a case against a nursing home and its administrator on similar reasoning in LaBauve v. The Service Master Co., Civil Action No. 3:00CV785WS (S.D.Miss. Jan. 14, 2002). In LaBauve, as in the case at bar, the plaintiffs alleged that the nursing home administrator breached her duty to provide adequate and appropriate custodial care to the residents of the nursing home, including the plaintiff's decedent, and that she had failed to prevent the mistreatment, abuse and neglect of the decedent. The plaintiff alleged, as here, that the administrator, in dereliction of her common law duty and statutory mandate, had failed to provide the minimum number of staff to care for and protect the decedent from harm and to provide sufficient numbers of qualified nurses, assistants and aides to meet the total needs of her decedent. And she alleged that this failure by the administrator to discharge her common law and statutory duties to the decedent had proximately resulted in serious injury, and ultimately the death of their decedent. Defendants in LaBauve argued, as they did in Barham and as they do here, that the administrator, who never had any contact with the decedent, could not be held liable under Mississippi law for any harm that befell the plaintiff's decedent. Judge Wingate concluded otherwise, finding it "irrelevant that the defendant [administrator] had no personal contact with the decedent" inasmuch as "[t]he plaintiff's cause of action [was] not premised on any personal contact with the defendant had with the decedent." LaBauve, No. 3:00CV785WS, slip op. at 9. "Instead, the plaintiff's cause of action is based on [the] defendant [administrator's] alleged failure to comply with the mandates of Mississippi law, which delegated
Most recently, Judge Pepper in the Northern District has also rejected defense arguments that nursing home administrators were fraudulently joined, specifically declining to hold that the plaintiffs' failure to allege that the administrators "personally participated in the care of [the patients]" warranted a finding of fraudulent joinder. See, e.g., Bradley v. Grancare, Inc., et al., Civil Action No. 4:03CV93-P-B (Aug. 15, 2003) (concurring with reasoning in LaBauve, Barham and Box).
The reasoning of these cases is sound.
By statute in Mississippi, nursing home administrators such as Lindsay are required to be licensed by the State Board of Nursing Home Administrators, Miss.Code Ann. § 73-17-3, and are "charged with the general administration of a nursing home," which is defined to mean "the duties of administrative performance and the making of day-to-day decisions involved in the planning, organizing, directing and/or controlling of a nursing home," Miss.Code Ann. § 73-17-5. The Mississippi Legislature has enacted statutes act governing "Institutions for the Aged or Infirm," Miss.Code Ann. § 43-11-3, et seq., with the declared purpose
Rule 403.1(a) of the Rules, Regulations and Minimum Standards for the Aged and Infirm adopted by the Mississippi State Board of Health pursuant to the legislature's statutory directive, see Miss.Code Ann. § 43-11-13(1), mandates that "[t]here shall be a licensed administrator with authority and responsibility for the operation of the [nursing home] facility in
Plaintiff alleges in his complaint that Lindsay breached these duties in that she failed to properly hire, supervise and train nursing personnel, and failed to ensure that adequate records were prepared and maintained.
The Mississippi Supreme Court has never held, and did not hold in Moore, that statutes or regulations cannot establish a legal duty or standard of care or cannot serve as evidence of negligence. Rather, the court in Moore held only that the particular regulations under consideration there, namely the State Pharmacy Board's internal regulations governing the conduct of pharmacies within the State, did not "create a separate cause of action" or "establish a legal duty of care to be applied in a civil action." 825 So.2d at 665. The court's conclusion in Moore that those regulations did not establish a legal duty of care was not based on the fact that they were regulations, but rather on the fact that the substance of those specific regulations was not such as to impose a legal duty on the part of pharmacists. Moreover, the court specifically recognized that "[a] violation of one of [the Pharmacy
While no Mississippi state court has passed on the question whether the nursing home regulations upon which plaintiff's negligence allegations are grounded establish a legal standard of care for nursing home administrators, a review of the regulations certainly does not foreclose a reasonable conclusion that a breach thereof might support a claim for negligence against a nursing home administrator.
What is clear from the foregoing is this: State law places certain duties on nursing home administrators and it is at least reasonably possible that a state court would find that those duties are owed to the residents of nursing homes and that a breach of those duties would constitute evidence of negligence on the part of the nursing home administrator.
Id., slip op. at 6 n. 4. Judge Pepper continued, stating:
Id. Judge Pepper's observations are equally applicable here.
Aside from the fact that Minimum Standard 408.1 expressly states that "the resident has a right of action for damages or other relief for deprivations or infringements of his right to adequate and proper treatment and care established by an applicable statute, rule, regulation or contract....," plaintiff's complaint does not indicate that he is suing directly under the statute for violation of the regulations, but rather merely cites to the statute and regulations as evidence of negligence. See Moore, 825 So.2d at 665 (observing that violation of one of the Pharmacy Board's internal regulations "may serve as evidence of negligence" even though the regulations did not create a separate cause of action or establish a legal duty of care to be applied in a civil action); see also LaBauve, No. 3:00CV785WS, slip op. at 9 (plaintiff had potentially cognizable cause of action against administrator based on her alleged failure to comply with certain statutory duties for the benefit of nursing home residents); Bradley v. Grancare, Inc., et al., Civil Action No. 4:03CV93-P-B, slip op. at 6 (N.D.Miss. Aug. 15, 2003) (observing that plaintiffs' briefs point out Mississippi statutes which define the duties of nursing home administrators and noting that under case law, namely Moore, a violation of a state agency's regulations may serve as evidence of negligence); cf. Palmer v. Anderson Infirmary Benev. Ass'n, 656 So.2d 790, 796 (Miss.1995) (observing in dicta that if hospital breached section of Minimum Standards of Operation for Mississippi Hospitals by not requiring the presence of two surgeons during operation, and if the patient was within class of persons protected by that regulation, then patient would have claim of negligence per se if he proved that his injury was caused by such breach) (cited in LaBauve).