Grancare v. Ruth Thrower

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRANCARE, LLC, DBA Vale No. 16-15533
Healthcare Center; MARINER
HEALTH CARE, INC., D.C. Nos.
Defendants-Appellants, 3:15-cv-05362-WHA
3:15-cv-05575-WHA
v.
RUTH THROWER, by and OPINION
through her Successor in
Interest, Rosie Lee Mills;
ROSIE LEE MILLS; HELEN
MILLS; LORETTA EDDINGS;
LASHAWN THROWER; PERRY
JOHNSON, JR.; ELLEN MASON,
Plaintiffs-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted October 18, 2017
San Francisco, California
Filed April 26, 2018
Before: Michael Daly Hawkins, William A. Fletcher,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge W. Fletcher
2 GRANCARE V. THROWER
SUMMARY*
Remand / Removal
The panel affirmed the district court’s order remanding a
case that GranCare LLC had removed to federal court and
awarding costs and attorney’s fees pursuant to 28 U.S.C.
§ 1447(c), after finding that GranCare administrator Remy
Rhodes was not fraudulently joined as a party in order to
defeat diversity and that removal to federal court was
objectively unreasonable.
The heirs of Ruth Thrower filed suit in California state
court, naming as defendants GranCare, and a GranCare
administrator, Remy Rhoades. GranCare removed to federal
court even though the named parties were not completely
diverse. The district court granted Thrower’s heirs’ motion
to remand, and awarded them costs and attorneys’ fees.
The panel first addressed GranCare’s argument that the
award was improper because the district court’s remand
order was legally incorrect. The panel rejected GranCare’s
argument that the district court applied an incorrect standard
for fraudulent joinder. The panel held that the fraudulent
joinder standard shared some similarities with the analysis
under Fed. R. Civ. P. 12(b)(6), but the tests for fraudulent
joinder and failure to state a claim were not equivalent. The
panel further held that if a plaintiff’s complaint could
withstand a Rule 12(b)(6) motion with respect to a particular
defendant, that defendant had not been fraudulently joined;
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRANCARE V. THROWER 3
but the reverse was not true, and if a defendant could not
withstand a Rule 12(b)(6) motion, the fraudulent joinder
inquiry did not end there. The panel concluded that
Thrower’s heirs had shown a possibility of recovery against
Rhodes. Specifically, the panel held that Thrower’s heirs had
shown a colorable claim against Rhodes under California’s
Elder Abuse and Dependent Adult Civil Protection Act, as
well as a colorable negligence per se claim.
The panel next addressed GranCare’s argument that even
if incorrect, removal was objectively reasonable, and the
award was improper. Costs and attorneys’ fees may be
awarded against GranCare if its decision to remove was
objectively unreasonable. The panel held that GranCare’s
reliance on a district court’s order in Johnson v. GranCare
LLC, No. 15-CV-03585-RS, 2015 WL 6865876 (N.D. Cal.
Nov. 9, 2015) (determining that Rhodes was a fraudulently
joined defendant), was unreasonable due to clear factual
distinctions between the cases. The panel held that, unlike
the complaint in Johnson, the complaint in this case contained
detailed allegations against Rhodes, and it was obvious that
GranCare would not have been entitled to removal in this
case even if the Johnson standard had been applied.
The panel concluded that the district court’s award of
costs and attorneys’ fees was not premised on an erroneous
view of the law or a clearly erroneous assessment of the
evidence.
4 GRANCARE V. THROWER
COUNSEL
Ben Ogletree (argued), Verdi & Ogletree PLLC, Washington,
D.C., for Defendants-Appellants.
David M. Medby (argued), Mark A. Schadrack, and Stephen
M. Garcia, Garcia Artigliere & Medby, Long Beach,
California, for Plaintiffs-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
Defendant-Appellant GranCare LLC (“GranCare”)
removed a diversity case to federal court, arguing that the
sole non-diverse defendant, nursing home administrator
Remy Rhodes, was fraudulently joined as a defendant in
order to defeat diversity and prevent removal. The district
court remanded the case and awarded costs and attorney’s
fees to Plaintiffs pursuant to 28 U.S.C. § 1447(c) after finding
that Rhodes was not fraudulently joined and that removal was
objectively unreasonable. GranCare appeals the award,
arguing that the district court applied an improper standard
for fraudulent joinder and that removal was objectively
reasonable. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
I. Factual and Procedural Background
Ruth Thrower died on July 30, 2015, after a stay at a
nursing facility operated by GranCare LLC. On September
14, 2015, Thrower’s estate and her successors (“Thrower’s
heirs”) filed suit in California state court naming as
GRANCARE V. THROWER 5
defendants, among others, GranCare and a GranCare
administrator, Remy Rhodes. The complaint alleged that
Thrower suffered a fall while residing at the facility, which
could have been prevented by the adoption of an adequate
care plan, and that GranCare staff delayed before sending
Thrower to a hospital for treatment. The complaint alleged
claims under California law against all defendants for elder
abuse, negligence, negligent hiring and supervision, and
wrongful death, and an additional claim against GranCare
only for fraud.
On December 7, 2015, defendants removed to federal
court, even though the named parties are not completely
diverse. Thrower’s heirs and defendant Rhodes are all
California citizens. The remaining defendants contended
that Rhodes is a sham defendant who was fraudulently joined
to the lawsuit for the purpose of defeating diversity. They
also contended that the complaint was “devoid of allegations
that Defendant Rhodes herself committed any specific
wrongdoing” and failed to “ascrib[e] any particular act or
omission by Rhodes.” Finally, they contended that Rhodes,
as a non-clinician administrator, owed no duty of care to
Thrower under California law.
Defendants relied on a district court order in Johnson v.
Grancare LLC, No. 15-CV-03585-RS, 2015 WL 6865876
(N.D. Cal. Nov. 9, 2015) as supporting removal. In Johnson,
the heirs of a different resident who died at a GranCare
facility sued the same set of defendants in California state
court for elder abuse. Id. at *1. As in this case, defendants
removed to federal court on the basis of diversity, asserting
that Rhodes had been fraudulently joined. Id. The district
court in Johnson concluded that “[t]he standard for
determining whether a defendant is fraudulently joined is
6 GRANCARE V. THROWER
similar to that of a 12(b)(6) motion to dismiss.” Id. at 2.
Under that standard, the court held that the complaint failed
to plead viable claims against Rhodes and denied plaintiffs’
motion to remand. GranCare argued in the district court that
the reasoning and result in the Johnson order compelled the
same outcome in this case because plaintiffs “[did] not plead
a viable cause of action against Rhodes.” At a hearing in this
case, GranCare conceded that there was “some possibility, if
plaintiff[s] properly pleaded such,” that Thrower’s heirs
could state a cause of action against Rhodes, but GranCare
emphasized that the complaint contained “no allegations”
against her.
The district court granted plaintiffs’ motion to remand. In
the court’s view, Johnson improperly conflated the test for
fraudulent joinder with the test under Rule 12(b)(6). The
court observed that no appellate decision has “explicitly
established how [the] standard [for fraudulent joinder]
interacts with the ‘plausibility’ standard used in evaluating
motions to dismiss under Rule 12(b)(6),” but concluded that
fraudulent joinder should not be found if there is “any
possibility” that a plaintiff could state a claim against the
defendant, even if the complaint actually fails to state a claim.
Applying this standard, the district court remanded. The
district court granted plaintiffs’ request for costs and
attorney’s fees after finding that removal was “patently
unreasonable.”
GranCare now appeals the award of costs and attorney’s
fees.
GRANCARE V. THROWER 7
II. Standard of Review
We review an award of costs and attorney’s fees under
28 U.S.C. § 1447(c) for abuse of discretion. Moore v.
Permanente Med. Grp., Inc., 981 F.2d 443, 447 (9th Cir.
1992). We will reverse a district court decision only if it is
premised on “clearly erroneous findings of fact or erroneous
determinations of law.” Dahl v. Rosenfeld, 316 F.3d 1074,
1077 (9th Cir. 2003).
III. Discussion
GranCare makes two arguments on appeal. First, it
argues that the award is improper because the district court’s
remand order is legally incorrect. Second, it argues that, even
if incorrect, removal was objectively reasonable. We address
each argument in turn.
A. Remand Order
While an order remanding a case for lack of subject
matter jurisdiction is unreviewable under 28 U.S.C.
§ 1447(d), we may consider the merits of a remand order
when determining whether an award that flows from that
order is proper. Balcorta v. Twentieth Century-Fox Film
Corp., 208 F.3d 1102, 1105 (9th Cir. 2000).
A defendant may remove “any civil action brought in a
State court of which the district courts . . . have original
jurisdiction.” 28 U.S.C. § 1441(a). Diversity removal
requires complete diversity, meaning that each plaintiff must
be of a different citizenship from each defendant. Caterpillar
Inc. v. Lewis, 519 U.S. 61, 68 (1996). In determining whether
there is complete diversity, district courts may disregard the
8 GRANCARE V. THROWER
citizenship of a non-diverse defendant who has been
fraudulently joined. Chesapeake & Ohio Ry. Co. v.
Cockerell, 232 U.S. 146, 152 (1914).
There are two ways to establish fraudulent joinder:
“(1) actual fraud in the pleading of jurisdictional facts, or
(2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court.” Hunter v.
Phillip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009)
(quoting Smallwood v. Illinois Cent. RR. Co., 385 F.3d 568,
573 (5th Cir. 2004)). Fraudulent joinder is established the
second way if a defendant shows that an “individual[] joined
in the action cannot be liable on any theory.” Ritchey v.
Upjohn Drug Co, 139 F.3d 1313, 1318 (9th Cir. 1998). But
“if there is a possibility that a state court would find that the
complaint states a cause of action against any of the resident
defendants, the federal court must find that the joinder was
proper and remand the case to the state court.” Hunter,
582 F.3d at 1046 (quoting Tillman v. R.J. Reynolds Tobacco,
340 F.3d 1277, 1279 (11th Cir. 2003) (per curiam)) (emphasis
added). A defendant invoking federal court diversity
jurisdiction on the basis of fraudulent joinder bears a “heavy
burden” since there is a “general presumption against
[finding] fraudulent joinder.” Id. (citations omitted).
We have upheld rulings of fraudulent joinder where a
defendant demonstrates that a plaintiff is barred by the statute
of limitations from bringing claims against that defendant.
See Ritchey, 139 F.3d at 1320; Hamilton Materials, Inc. v.
Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). We
have also upheld such rulings where a defendant presents
extraordinarily strong evidence or arguments that a plaintiff
could not possibly prevail on her claims against the allegedly
fraudulently joined defendant. See McCabe v. Gen. Foods
GRANCARE V. THROWER 9
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (defendant’s
conduct was privileged under state law); United Comput. Sys.
Inc. v. AT&T Corp., 298 F.3d 756, 761 (9th Cir. 2002)
(plaintiff’s claims against alleged sham defendant were all
predicated on a contract to which the defendant was not a
party); Kruso v. Int’l Tel. & Tel. Corp., 872 F.2d 1416,
1426–27 (9th Cir. 1989) (same). We have declined to uphold
fraudulent joinder rulings where a defendant raises a defense
that requires a searching inquiry into the merits of the
plaintiff’s case, even if that defense, if successful, would
prove fatal. See Hunter, 582 F.3d at 1046 (holding that an
implied preemption affirmative defense was not a permissible
ground for finding fraudulent joinder).
GranCare argues that the district court in this case applied
an incorrect standard for fraudulent joinder. Specifically, it
argues that the district court’s standard incorrectly requires a
removing party to show that there is no possibility that the
plaintiff could demonstrate a viable claim against the
allegedly fraudulently joined defendant. GranCare argues
that the correct standard is close to that of a Rule 12(b)(6)
motion to dismiss, as applied by the district court in Johnson.
We disagree.
We agree with GranCare’s contention that the fraudulent
joinder standard shares some similarities with the analysis
under Rule 12(b)(6). Both require some assessment of the
plaintiff’s lawsuit. Indeed, we have previously framed the
test in terms of an “obvious” failure to state a claim. See
McCabe, 811 F.2d at 1339 (holding that fraudulent joinder is
established when a plaintiff “fails to state a cause of action
against a resident defendant, and the failure is obvious
according to the settled rules of the state[.]”). And while the
party seeking removal is entitled to present additional facts
10 GRANCARE V. THROWER
that demonstrate that a defendant has been fraudulently
joined, Ritchey, 139 F.3d at 1318, in many cases, the
complaint will be the most helpful guide in determining
whether a defendant has been fraudulently joined, see
McCabe, 811 F.2d at 1339.
But the test for fraudulent joinder and for failure to state
a claim under Rule 12(b)(6) are not equivalent. A claim
against a defendant may fail under Rule 12(b)(6), but that
defendant has not necessarily been fraudulently joined. We
emphasized in Hunter that a federal court must find that a
defendant was properly joined and remand the case to state
court if there is a “possibility that a state court would find that
the complaint states a cause of action against any of the [non-
diverse] defendants.” Hunter, 582 F.3d at 1046 (emphasis
added) (internal quotations and citation omitted) (quoting
Tillman, 340 F.2d at 1279). This standard accords with that
adopted by a majority of our sister circuits. See Batoff v.
State Farm Ins. Co., 977 F.2d 848, 851–52 (3d Cir. 1992)
(noting that “a possibility” of a claim precludes fraudulent
joinder); Hartley v. CSX Transp.; Inc., 187 F.3d 422, 424
(4th Cir. 1999) (“no possibility” standard); Travis v. Irby,
326 F.3d 644, 647–49 (5th Cir. 2003) (defendant must show
“the absence of any possibility” of recovery) (internal
quotation marks omitted); Schur v. L.A. Weight Loss Ctrs.,
Inc., 577 F.3d 752, 764 (7th Cir. 2009) (“[T]he district court
must ask whether there is ‘any reasonable possibility’ that the
plaintiff could prevail against the non-diverse defendant.”);
Junk v. Terminix Int’l Co., 628 F.3d 439, 445–46 (8th Cir.
2010) (defendant must establish that there is no “colorable
claim” against the alleged sham defendant); Stillwell v.
Allstate Ins. Co., 663 F.3d 1329, 1332–33 (11th Cir. 2011)
(“no possibility” standard).
GRANCARE V. THROWER 11
A standard that equates fraudulent joinder with Rule
12(b)(6) conflates a jurisdictional inquiry with an
adjudication on the merits. Because the purpose of the
fraudulent joinder doctrine is to allow a determination
whether the district court has subject matter jurisdiction, the
standard is similar to the “wholly insubstantial and frivolous”
standard for dismissing claims under Rule 12(b)(1) for lack
of federal question jurisdiction. Bell v. Hood, 327 U.S. 678,
682–83 (1946); Franklin v. Murphy, 745 F.2d 1221, 1227 n.6
(9th Cir. 1984) (“A paid complaint that is ‘obviously
frivolous’ does not confer federal subject matter
jurisdiction.”). The relative stringency of the standard
accords with the presumption against removal jurisdiction,
under which we “strictly construe the removal statute,” and
reject federal jurisdiction “if there is any doubt as to the right
of removal in the first instance.” Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (per curiam).
We articulated this standard most recently in Weeping
Hollow Avenue Trust v. Spencer, 831 F.3d 1110 (9th Cir.
2016). In Weeping Hollow, an organization that had
purchased property at a foreclosure sale filed a quiet title
action, naming among others the former homeowner,
Spencer, as a defendant. Id. at 1111. Another defendant
removed the case to federal court. Id. It argued that Spencer
had been fraudulently joined because the foreclosure sale had
extinguished any interest she had in the property. Id. We
held that Spencer had not been fraudulently joined because
she retained the ability to challenge the foreclosure on
equitable grounds of “fraud, unfairness or oppression.” Id. at
1113–14 (citation and quotation omitted).
GranCare cites Sessions v. Chrysler Corp., 517 F.2d 759
(9th Cir. 1975), in support of its argument that the test for
12 GRANCARE V. THROWER
fraudulent joinder is roughly equivalent to the test under Rule
12(b)(6). In Sessions, we concluded that because a plaintiff’s
claims were “sufficient to withstand a dismissal motion under
Fed. R. Civ. P. 12(b)(6), the joinder of claims against them
was not fraudulent.” Id. at 761. But our holding in Sessions
is consistent with the “possibility” standard we follow today.
If a plaintiff’s complaint can withstand a Rule 12(b)(6)
motion with respect to a particular defendant, it necessarily
follows that the defendant has not been fraudulently joined.
But the reverse is not true. If a defendant cannot withstand a
Rule 12(b)(6) motion, the fraudulent inquiry does not end
there. For example, the district court must consider, as it did
in this case, whether a deficiency in the complaint can
possibly be cured by granting the plaintiff leave to amend.
In the case before us, plaintiffs have shown a possibility
of recovery against Rhodes. California’s Elder Abuse and
Dependent Adult Civil Protection Act (“the Act”) provides
civil penalties for elder abuse. Cal. Welf. & Inst. Code.
§ 15600, et seq. Section 15610.07 of the Act defines elder
abuse as including both “neglect” and “[t]he deprivation by
a care custodian of goods or services that are necessary to
avoid physical harm or mental suffering.” Neglect includes
“[t]he negligent failure of any person having the care or
custody of an elder or a dependent adult to exercise the
degree of care that a reasonable person in a like position
would exercise.” Id. § 15610.57(a)(1). The Act provides a
non-exhaustive list of actions that constitute neglect,
including “[f]ailure to provide medical care for physical and
mental health needs” and “[f]ailure to protect from health or
safety hazards.” Id. § 15610.57(b)(2)–(3).
To prove a neglect claim under the Act, a plaintiff must
establish that: (1) the plaintiff or decedent was over 65, and
GRANCARE V. THROWER 13
therefore an elder within the meaning of the Act; (2) the
defendant had “a substantial caretaking or custodial
relationship” with the elder; (3) the defendant failed to use
due care; (4) the elder was harmed as a result; and (4) the
defendant’s conduct was a substantial factor in causing the
elder’s harm. Cal. Welf. & Inst. Code. § 15610.57; Cal. Civ.
Jury Instructions § 3103. The Act does not apply to simple
or gross negligence by healthcare providers, but requires
proof of “reckless, oppressive, fraudulent, or malicious
conduct.” Delaney v. Baker, 20 Cal. 4th 23, 31 (1999).
Plaintiffs allege a colorable claim against Rhodes. The
complaint alleges that Rhodes is “the [a]dministrator and
managing agent of [GranCare], responsible for the day-to-day
operations.” The complaint states that Thrower was over 65
“at all relevant times” and therefore was an “elder” as defined
in the Act. The complaint further alleges several “failure[s]
to protect from health or safety hazards,” including
allegations that the defendants failed to provide safety and
assistance devices to prevent accidents, did not adequately
train their staff, and that Rhodes did not conduct adequate
screening procedures before admitting Thrower to confirm
that the facility was adequately equipped to care for her.
The complaint alleges that Thrower died after she
suffered a preventable fall and defendants delayed for over
18 hours before taking her to a hospital. California applies a
broad “substantial factor” test for legal causation, and
Thrower’s heirs need only demonstrate a reasonable
possibility that Rhodes’s actions played a role in Thrower’s
death that was not merely “infinitesimal” or “theoretical.”
Bockrath v. Aldrich Chem. Co., Inc., 21 Cal. 4th 71, 79
(1999). Finally, Rhodes’s alleged actions are within the
range of conduct determined by California courts to qualify
14 GRANCARE V. THROWER
as reckless neglect. See, e.g., Sababin v. Superior Court,
144 Cal. App. 4th 81, 89–90 (2006) (finding a triable issue on
the question of recklessness where a rehabilitation center
established, but failed to follow, a care plan that included
monitoring a patient’s skin and reporting changes to a
physician); Fenimore v. Regents of the Univ. of Cal., 245 Cal.
App. 4th 1339, 1350 (2016) (holding that systemic
understaffing may provide evidence of “recklessness” under
the Act).
Plaintiffs also allege a colorable negligence per se claim
against Rhodes. Under California law, a failure to exercise
due care is presumed if “(1) [the defendant] violated a statute,
ordinance, or regulation of a public entity; (2) [t]he violation
proximately caused a death or injury to person or property,
(3) [t]he death or injury resulted from an occurrence of the
nature that the statute, ordinance, or regulation was designed
to prevent; and (4) [t]he person suffering the death or injury
. . . was one of the class of persons for whose protection the
statute, ordinance, or regulation was adopted.” Cal. Evid.
Code § 669(a). The complaint alleges that Rhodes violated
a series of regulations applicable to nursing home
administrators, including Cal. Code. Regs § 72513(f). It
specifically alleges that Rhodes violated § 72513(f) by failing
to conduct a preadmission personal interview with Thrower’s
physician, and by failing to update screening assessments.
The complaint alleges further that Thrower’s fall could have
been prevented had Rhodes and GranCare adopted an
adequate care plan prior to her arrival, although the precise
details are unclear. Finally, the complaint alleged that, as a
resident at an elder care facility, Thrower was within the class
protected by the regulation.
GRANCARE V. THROWER 15
GranCare has not demonstrated that there is no possibility
that Plaintiffs could prevail against Rhodes. GranCare
submitted a declaration from Rhodes in which she denied the
allegations and emphasized that her role is largely
administrative. But a denial, even a sworn denial, of
allegations does not prove their falsity, and Rhodes’s status
as an administrator does not insulate her from liability. See
Cal. Welf. Inst. & Inst. Code § 15610.17 (including
administrators within the statutory definition of “care
custodians”); Delaney, 20 Cal. 4th at 27–28, 41 (upholding
jury verdict finding a nursing home and its administrators
liable for the death of a patient).
GranCare also makes a series of arguments to the effect
that Plaintiffs have not adequately pleaded their claims
against Rhodes, and that the district court did not accord
sufficient weight to deficiencies in the complaint.
Specifically, GranCare argues that the heirs erred in
“lumping” Rhodes with other defendants by alleging
misconduct against all defendants collectively, that the heirs
did not plead their claims with sufficient particularity, and
that the heirs did not sufficiently allege negligence. Because
these arguments go to the sufficiency of the complaint, rather
than to the possible viability of the heirs’ claims against
Rhodes, they do not establish fraudulent joinder.
B. The Reasonableness of Removal
Costs and attorney’s fees may be awarded against
GranCare if its decision to remove was objectively
unreasonable. Absent unusual circumstances, a court may
award costs and attorney’s fees under § 1447(c) only where
the removing party lacked an objectively reasonable basis for
seeking removal. Martin v. Franklin Capital Corp., 546 U.S.
16 GRANCARE V. THROWER
132, 141 (2005). Removal is not objectively unreasonable
“solely because the removing party’s arguments lack merit,
or else attorney’s fees would always be awarded whenever
remand is granted.” Lussier v. Dollar Tree Stores, Inc.,
518 F.3d 1062, 1065 (9th Cir. 2008).
GranCare argues that the award of costs and attorney’s
fees is improper. It contends that it reasonably relied on the
order in Johnson—in which a district court in the same
district determined that Rhodes was a fraudulently joined
defendant—in deciding to remove this case. We agree with
GranCare that the degree of clarity in the relevant law at the
time of removal is a relevant factor in determining whether a
defendant’s decision to remove was reasonable. See Lussier,
518 F.3d at 1063. We are willing to assume, arguendo, that
at the time of removal, no appellate decision in this circuit
had yet clarified the relationship between Rule 12(b)(6) and
the standard for fraudulent joinder. Further, we recognize
two district courts in the same jurisdiction, faced with our
precedents, came to different conclusions as to the governing
standard. Without agreeing that Johnson’s standard was
legally correct, we conclude that GranCare had a reasonable
basis for relying on the standard articulated in that case.
However, the district court correctly determined that
GranCare’s reliance on Johnson was unreasonable due to
clear factual distinctions between the cases. The Johnson
complaint identified Rhodes as the nursing home
administrator, but did not mention her elsewhere, leaving the
basis for plaintiffs’ claims entirely unclear. The failure to do
anything other than identify Rhodes as the administrator was
the primary reason for the Johnson court’s conclusion that
Rhodes had been fraudulently joined. Unlike the complaint
in Johnson, the complaint in this case contained detailed
GRANCARE V. THROWER 17
allegations against Rhodes, and it is obvious that GranCare
would not have been entitled to removal in this case even if
the Johnson standard had been applied.
Conclusion
Because the district court’s award of costs and attorney’s
fees was not premised on an erroneous view of the law or a
clearly erroneous assessment of the evidence, we affirm.
AFFIRMED.