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Date: 12-31-2018

Case Style:

Kristy Coghlan v. Nexion Health at Cherry Creek, Inc.

Case Number: 1:18-cv-02991-WJM-KLM

Judge: William J. Martinez

Court: United States District Court for the District of Colorado (Denver County)

Plaintiff's Attorney:


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Defendant's Attorney: Unavailable

Description: Denver, CO: Plaintiff personal injury lawyer represented Kristy Coghlan, as the Personal Representative of the Estate of Sharon Knight, who sued Nexion Health at Cherry Creek, Inc., d/b/a Cherry Creek Nursing Center on a personal injury negligence theory.

The case was filed in the District Court, Arapahoe County, Case No.: 2018CV32463, and was removed by the Defendant to federal court.

Plaintiff moved to remand claiming that the federal court did not have jurisdiction over the case.

This was possibly a nursing home negligence case.

Outcome: 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) (Entered: 12/31/2018)

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