United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants Fresenius Medical
Center CNA Kidney Centers, LLC (“Fresnius”) and
Biomedical Applications of South Carolina, Inc.'s
“defendants”) motion to dismiss, ECF No. 5, and
plaintiff Margaret Ann Brailsford's
(“Brailsford”) motion to remand. ECF No. 6. For
the reasons set forth below, the court denies
Brailsford's motion to remand and grants defendants'
motion to dismiss all of Brailsford's causes of action.
operate a therapeutic renal patient care treatment center in
Clarendon County, South Carolina. Compl. ¶ 6. Defendants
hired Brailsford as a patient care technician in 2003.
Id. ¶ 7. Her duties included monitoring the
vital signs of patients and initiating and monitoring the
dialysis treatment process for patients. Id. In or
about 2010, Brailsford became a certified hemodialysis
technician, although her job duties remained the same.
Id. ¶ 8.
April 2, 2014, Brailsford called one of the clinic's
patients, identified in her complaint as “Patient M,
” out of the waiting area for his weekly dialysis
treatment. Id. ¶ 11. Patient M, who had arrived
two hours early for his appointment, became agitated and
hostile towards Brailsford because he had to wait for his
treatment. Id. ¶ 12. Patient M used profane
language and complained that the dialysis chair he was
supposed to use was not clean. Id. Patient M sought
out Cheryl Blackwell (“Blackwell”), clinical
manager and area director of nursing, to complain about his
chair. Id. ¶ 13. Brailsford asked Blackwell if
she could switch patients with another hemodialysis
technician and Blackwell agreed. Id.
Patient M had been escorted from the waiting room by the
other technician, he was positioned behind Brailsford's
work station. Id. ¶ 14. Patient M then told
Brailsford that she “picked the right one to f*ck with
today” and stood behind her in a physically threatening
manner. Id. As Brailsford walked away, Patient M
stated, “you better walk off before I put my foot up
your ass.” Id. ¶ 15. Brailsford went to
nurse Lori Hodge (“Hodge”), who was the team
leader on duty at the time, to report the incident.
Id. Hodge told Brailsford to speak with Blackwell.
Id. However, Brailsford could not find Blackwell in
the facility. Id. Brailsford continued to perform
her job duties amid intermittent snide and threatening
comments from Patient M. Id.
conclusion of Patient M's treatment, it became apparent
that he had defecated on himself and his chair, leaving
bodily fluids and waste in the area he had been sitting.
Id. ¶ 16. While Brailsford and two other
technicians were cleaning Patient M's station, Brailsford
informed her coworkers that Patient M had AIDS. Id.
¶ 17. Brailsford claims that no patients were in the
vicinity when she made this comment. Id. While
cleaning, Patient M reentered the area, speaking in a loud
and threatening manner. Id. ¶ 18. Another nurse
asked Patient M to leave and, when he did not, picked up the
phone to call 911. Id. ¶¶ 18-19. Patient M
stated, “y'all don't know who ya'll f*cking
with” and turned and fled before the police arrived.
Id. ¶ 19.
next day, Brailsford reported the entire incident to
Blackwell, her supervisor. Id. ¶ 20. Blackwell
responded with a “complete and utter lack of
concern.” Id. Later the same day, Blackwell
informed Brailsford that Patient M had filed a complaint
against her. Id. ¶ 21. During a meeting that
day, Leslie Shutz (“Shutz”), a human resources
representative, berated Brailsford for having told her fellow
staff that Patient M had AIDS. Id. When Brailsford
asked if defendants intended to investigate Patient M's
physical threats, Shutz stated that she would “get back
in touch with her.” Id. ¶ 22. Brailsford
was ultimately suspended without pay. Id. ¶ 23.
On April 15, 2015, Shutz informed Brailsford that she was
being terminated for violating HIPPA and PHI. Id.
¶ 24. Brailsford contends that her termination was in
retaliation for attempting to avail herself of
defendants' problem resolution procedure and for a letter
sent by another employee a year earlier outlining health and
safety complaints. Id. ¶¶ 24-25.
court notes that it has addressed this dispute before, in
Brailsford v. Fresenius Medicial Care CAN Kidney Centers
LLC, et. al., 2:15-cv-0239-DCN (“Brailsford
I”). Brailsford filed the Brailsford I
complaint in state court on November 7, 2014, bringing causes
of action for: (1) breach of contract; (2) breach of contract
accompanied by a fraudulent act; (3) violation of public
policy; and (4) failure to protect. Defendants removed
Brailsford I to this court, and on January 23, 2015,
defendants filed a motion to dismiss. The court dismissed the
Brailsford I claims without prejudice on July 21,
2015, reasoning that Brailsford had failed to allege that she
entered into a contract which “‘impose[d] a
limitation on [defendants'] right to terminate [her] at
any time for any reason.'” Brailsford I,
2015 WL 4459032, at *1 (D.S.C. July 21, 2015) (alterations in
original) (quoting Grant v. Mount Vernon Mills,
Inc., 634 S.E.2d 15, 20 (S.C. Ct. App. 2006)).
August 17, 2015, Brailsford filed the instant complaint in
state court, alleging the following causes of action: (1)
breach of contract and (2) breach of contract with fraudulent
intent. On September 28, 2015, defendants removed
the case to this court and on October 5, 2015, defendants
filed a motion to dismiss. ECF No. 5. Brailsford filed a
motion to remand on October 8, 2015. ECF No. 6. On October
14, 2015, Brailsford filed a response in opposition to
defendants' motion to dismiss, ECF No. 7, and defendants
replied on October 26, 2015. ECF No. 8. Defendants filed a
response in opposition to Brailsford's motion to remand
on October 26, 2015, ECF No. 9, and Brailsford replied on
November 3, 2015. ECF No. 10. Both motions have been fully
briefed and are ripe for the court's review.
most recent complaint differs very little from her complaint
in Brailsford I, with the exception of the following
Defendant's policies and procedures contained in its
employment handbook is [sic] couched in mandatory language
which limits Defendant from terminating Plaintiff's
employment for reasons relating to her making reports of
abusive, threatening, or violent behavior.
Compl. ¶ 29. The complaint also contains a paragraph
which states that “Defendant's Employment Handbook
does not contain a conspicuous disclaimer.”
Id. ¶ 30. Other than these two paragraphs, and
the omission of two causes of action, the complaints are
Motion to Remand
right to remove a case from state court to federal court is
derived from 28 U.S.C. § 1441, which provides that
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant . . . to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). The party seeking
to remove a case from state court to federal court bears the
burden of demonstrating that jurisdiction is proper at the
time the petition for removal is filed. Caterpillar Inc.
v. Lewis, 519 U.S. 61, 73 (1996). If federal
jurisdiction is doubtful, remand is necessary. Mulcahey
v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir. 1994); Pohto v. Allstate Ins. Co., No. 10-2654,
2011 WL 2670000, at *1 (D.S.C. July 7, 2011) (“Because
federal courts are forums of limited jurisdiction, any doubt
as to whether a case belongs in federal or state court should
be resolved in favor of state court.”).
courts have diversity jurisdiction over a case “where
the matter in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between . . .
citizens of different states.” 28 U.S.C. §
1332(a)(1). When removal is based solely on diversity
jurisdiction, however, an otherwise-removable case “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). Federal law also requires that “[a] motion
to remand the case on the basis ...