Brown v. Quince Nursing and Rehabilitation Center, LLC

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

JAMARCUS BROWN, as next of kin )

of Rocky Darrin Brown, deceased,)

and on behalf of the wrongful )

death beneficiaries of Rocky )

Darrin Brown, )

)

Plaintiff, )

)

v. ) No. 2:18-cv-2740

)

QUINCE NURSING AND )

REHABILITATION CENTER, LLC, )

d/b/a QUINCE NURSING AND )

REHABILITATION CENTER; AURORA )

CARES, LLC; DTD HC, LLC; D&N, )

LLC; DONALD T. DENZ; and )

NORBERT A. BENNETT, )

)

Defendants. )

)

ORDER

Before the Court is Aurora Cares, LLC (“Aurora Cares”); DTD

HC, LLC (“DTD”); D&N, LLC (“D&N”); Donald T. Denz; and Norbert A.

Bennett’s (collectively, the “Non-facility Defendants”) Motion to

Dismiss, filed on November 2, 2018. (ECF No. 9.) Plaintiff

Jamarcus Brown, as next of kin of Rocky Darrin Brown, deceased,

and on behalf of the wrongful death beneficiaries of Rocky Darrin

Brown, responded on November 30, 2018. (ECF No. 17.) Non-facility

Defendants replied on December 14, 2018. (ECF No. 18.)

For the following reasons, Non-facility Defendants’ Motion to

Dismiss is DENIED.

I. Background

Quince Nursing and Rehabilitation Center, LLC (“Quince”) is

a nursing home facility and a Tennessee limited liability company.

(ECF No. 1 ¶ 6.) Aurora Cares is a New York limited liability

company. (ECF No. 1-1 ¶ 5.) The members of Quince and Aurora

Cares are D&N and DTD. (ECF No. 1 ¶ 7; No. 1-1 ¶¶ 4-5.) D&N and

DTD are New York limited liability companies. (ECF No. 1 ¶ 7.)

Norbert A. Bennett is a member of D&N. (Id.) Donald T. Denz is

a member of DTD. (Id.)

Rocky Brown was a resident of Quince Nursing and

Rehabilitation Center from about April 24, 2017, to November 28,

2017. (ECF No. 1-1 ¶ 2.) Around November 28, 2017, Rocky Brown

was transferred from Quince Nursing and Rehabilitation Center to

Saint Francis Hospital. (Id.) On March 31, 2018, Rocky Brown

died at the hospital. (Id.)

On August 22, 2018, Jamarcus Brown, Rocky Brown’s son, brought

this negligence and survival and wrongful death action against the

Defendants in Tennessee state court. (ECF No. 1-1.) Jamarcus

Brown alleges that injuries Rocky Brown sustained at Quince Nursing

and Rehabilitation Center led to Rocky Brown’s death. (Id. ¶¶ 20-

23.)

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On October 24, 2018, Defendants removed this action to federal

court. (ECF No. 1.) On November 2, 2018, Non-facility Defendants

filed this Motion to Dismiss asserting that: (1) the Court does

not have personal jurisdiction over them; (2) Denz and Bennett are

protected from suit under the “fiduciary shield doctrine”; and

(3) Jamarcus Brown fails to state a claim against the Non-facility

Defendants under the Tennessee Health Care Liability Act

(“THCLA”), Tenn. Code Ann. §§ 29-26-101, et seq. (ECF No. 9-1 at

8-16.)

Concurrently with Non-facility Defendants’ Motion to Dismiss,

Quince filed a Motion to Compel Arbitration and Stay Proceedings

(“Motion to Compel”). (ECF No. 8.) On August 27, 2019, Defendants

filed a Motion to Stay pending resolution of Quince’s Motion to

Compel. (ECF No. 42.) Non-facility Defendants argue that, if the

Court has personal jurisdiction over them, an arbitration

agreement binds Jamarcus Brown to arbitration on his claims against

them. (ECF No. 8-1 at 1 n.1.) On September 26, 2019, the Court

granted Defendants’ Motion to Stay and held the case in abeyance

pending resolution of Quince’s Motion to Compel. (ECF No. 46.)

On August 12, 2020, the Court adopted the Magistrate Judge’s Report

and Recommendation denying Quince’s Motion to Compel. (ECF No.

66.) Because that Order concluded that an arbitration agreement

3

did not bind Rocky Brown to arbitration, Non-facility Defendants’

argument about arbitration also fails.

II. Jurisdiction and Choice of Law

The Court has diversity jurisdiction. 28 U.S.C. § 1332. The

amount in controversy exceeds $75,000. Jamarcus Brown seeks

compensatory and punitive damages for, inter alia, survival and

wrongful death claims against multiple defendants. (See ECF No.

1-1 ¶ 50; see also ECF No. 1 ¶ 5.)

The parties are completely diverse. At the time of his death,

Rocky Brown was a citizen of Tennessee. (ECF No. 1-1 ¶ 2; see

also No. 1 ¶ 6). For purposes of this action, Jamarcus Brown is

also a citizen of Tennessee. No defendant is a citizen of

Tennessee. Quince is a Tennessee limited liability company. (ECF

No. 1 ¶ 6.) Aurora Cares is a New York limited liability company.

(ECF No. 1-1 ¶ 5.) For purposes of diversity jurisdiction, limited

liability companies have the citizenship of each of their members.

Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct. 1012, 1015

(2016) (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96

(1990)); accord Delay v. Rosenthal Collins Grp., LLC, 585 F.3d

1003, 1005 (6th Cir. 2009). The members of Quince and Aurora Cares

are D&N and DTD, who are also named defendants in this lawsuit.

(See ECF No. 1 ¶ 7; No. 1-1 ¶¶ 4-7.) D&N and DTD are New York

limited liability companies. (ECF No. 1 ¶ 7.) D&N’s members are

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Norbert A. Bennett, the Norbert A. Bennett Children’s Trust, and

the Norbert A. Bennett Grand-Children’s Trust. (Id.) Bennett is

a citizen of New York. (Id.) The citizenship of a traditional

trust is that of its trustee. See GBForefront, L.P. v. Forefront

Mgmt. Grp., LLC, 888 F.3d 29, 38-40 (3d Cir. 2018) (citations

omitted). The trustee of the Norbert A. Bennett Children’s Trust

and the Norbert A. Bennett Grand-Children’s Trust is Ronald

Bennett, who is also a citizen of New York. (ECF No. 1 ¶ 7.)

DTD’s members are Donald T. Denz and the Donald T. Denz Irrevocable

Trust. (Id. ¶ 8.) Denz is a citizen of New York. (Id.) The

trustee of the Donald T. Denz Irrevocable Trust is Martin Clifford,

who is also a citizen of New York. (Id.)

The Court has diversity jurisdiction because the parties are

completely diverse and the amount in controversy exceeds $75,000.

28 U.S.C. § 1332.

Federal courts sitting in diversity apply state law to issues

of substantive law and federal law to procedural issues. Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938); see also Gasperini

v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). When there

is no dispute that a certain state’s substantive law applies, the

court need not conduct a choice-of-law analysis sua sponte. See

GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir.

1998). The parties assume in their respective briefs that

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Tennessee substantive law governs Jamarcus Brown’s claims. The

Court will apply Tennessee substantive law.

III. Legal Standards

A. Personal Jurisdiction

When a defendant challenges personal jurisdiction under Rule

12(b)(2), “[t]he plaintiff bears the burden of making a prima facie

showing of the court’s personal jurisdiction over the defendant.”

Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th Cir. 2005); see

also Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 504

(6th Cir. 2020). A plaintiff “can meet this burden by

‘establishing with reasonable particularity sufficient contacts

between [defendants] and the forum state to support

jurisdiction.’” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d

883, 887 (6th Cir. 2002) (quoting Provident Nat’l Bank v. Cal.

Fed. Sav. Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987)). If the

plaintiff meets his burden, the motion to dismiss should be denied

“notwithstanding any controverting presentation by the moving

party.” Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212,

1214 (6th Cir. 1989) (quoting Marine Midland Bank, N.A. v. Miller,

664 F.2d 899, 904 (2d Cir. 1981)). Because the Court is relying

solely on written submissions to resolve this Motion, rather than

an evidentiary hearing or jurisdictional discovery, Jamarcus

Brown’s burden to establish a prima facie showing of personal

6

jurisdiction is “relatively slight.” Air Prods. & Controls, Inc.

v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quoting

Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988));

see also Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th

Cir. 1998) (“relatively light”). The Court construes the facts in

the light most favorable to Jamarcus Brown. See Air Prods., 503

F.3d at 549 (citing Theunissen v. Matthews, 935 F.2d 1454, 1459

(6th Cir. 1991)).

When considering a motion to dismiss for lack of personal

jurisdiction under Rule 12(b)(2), a federal court looks first to

the long-arm statute of the state in which it sits to determine

the state’s limitations on personal jurisdiction. See Aristech

Chem. Int’l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627

(6th Cir. 1998); see also Fed. R. Civ. P. 4(k)(1)(A). The court

then assesses whether the exercise of personal jurisdiction, if

any, would be appropriate under the Due Process Clause of the

Fourteenth Amendment. See Bird v. Parsons, 289 F.3d 865, 871 (6th

Cir. 2002); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th

Cir. 1996). If the exercise of jurisdiction would be inappropriate

under the Due Process Clause of the Fourteenth Amendment, this

“foreclose[s] the exercise of personal jurisdiction even where a

properly construed provision of the long-arm statute would

otherwise permit it.” Theunissen, 935 F.2d at 1459.

7

B. Failure to State a Claim

Rule 12(b)(6) allows dismissal of a complaint that “fail[s]

to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). A Rule 12(b)(6) motion permits the “defendant to

test whether, as a matter of law, the plaintiff is entitled to

legal relief even if everything alleged in the complaint is true.”

Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A motion to

dismiss tests only whether the plaintiff has pled a cognizable

claim and allows the court to dismiss meritless cases that would

waste judicial resources and result in unnecessary discovery. See

Brown v. City of Memphis, 440 F. Supp. 2d 868, 872 (W.D. Tenn.

2006).

When evaluating a motion to dismiss for failure to state a

claim, the Court must determine whether the complaint alleges

“sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). If a court decides in light of its judicial

experience and common sense that the claim is not plausible, the

case may be dismissed at the pleading stage. Iqbal, 556 U.S. at

679. The “[f]actual allegations must be enough to raise a right

to relief above [a] speculative level . . . .” Twombly, 550 U.S.

at 555.

8

A claim is plausible on its face if “the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. A complaint need not contain detailed

factual allegations. However, a plaintiff’s “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.

“When reviewing a motion to dismiss, the district court may

not consider matters beyond the complaint.” Hensley Mfg. v.

ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009) (citation

omitted). “If the district court does consider evidence outside

the complaint, it effectively converts the motion to dismiss to a

motion for summary judgment.” Id. (quotation marks and citations

omitted). This Circuit generally takes “a liberal view of what

matters fall within the pleadings for purposes of” a motion to

dismiss. Armengau v. Cline, 7 F. App’x 336, 344 (6th Cir. 2001).

That does not mean that a court must or may consider any and all

materials the parties submit. Documents attached to a motion to

dismiss may be considered part of the pleadings if they are

“referred to in a complaint and central to the claim.” Id. (citing

Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999));

see also Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008)

(citation omitted).

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IV. Analysis

Non-facility Defendants assert that they should be dismissed

from this suit because: (1) the Court does not have personal

jurisdiction over them; (2) Denz and Bennett are protected from

suit under the “fiduciary shield doctrine”; and (3) Jamarcus Brown

fails to state a claim against Non-facility Defendants under the

THCLA. (ECF No. 9-1 at 8-16.)

A. Personal Jurisdiction

A federal court sitting in diversity must apply the law of

the forum state to determine whether it may exercise jurisdiction

over the person of a non-resident defendant. Welsh v. Gibbs, 631

F.2d 436, 439 (6th Cir. 1980). The jurisdictional limits of

Tennessee law and federal due process are coterminous. See Parker

v. Winwood, 938 F.3d 833, 839 (6th Cir. 2019); First Cmty. Bank,

N.A. v. First Tenn. Bank, N.A., 489 S.W.3d 369, 384 (Tenn. 2015).

The Court need only decide whether exercising personal

jurisdiction over Non-facility Defendants is consistent with

federal due process requirements. Bridgeport Music, Inc. v. Still

N the Water Publ’g, 327 F.3d 472, 477 (6th Cir. 2003).

The Due Process Clause of the Fourteenth Amendment requires

that a non-resident defendant have at least “certain minimum

contacts with [the forum state] such that the maintenance of the

suit does not offend ‘traditional notions of fair play and

10

substantial justice.’” Youn v. Track, Inc., 324 F.3d 409, 417

(6th Cir. 2003) (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945)). “There are two kinds of personal jurisdiction

within the Federal Due Process inquiry: (1) general personal

jurisdiction, where the suit does not arise from defendant’s

contacts with the forum state; and (2) specific jurisdiction,

where the suit does arise from the defendant’s contacts with the

forum state.” Conn v. Zakharov, 667 F.3d 705, 712–13 (6th Cir.

2012).

General jurisdiction allows a plaintiff to sue a defendant

“on any and all claims,” regardless of the connection (or lack

thereof) between the claim and the forum. Maxitrate Tratamento

Termico E Controles v. Super Sys., Inc., 617 F. App’x 406, 408

(6th Cir. 2015) (citing Daimler AG v. Bauman, 134 S. Ct. 746, 754

(2014)). Specific jurisdiction “exposes the defendant to suit in

the forum state only on claims that arise out of or relate to a

defendant’s contacts with the forum.” Kerry Steel, Inc. v. Paragon

Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997) (quoting

Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408,

414-15 & nn.8-10 (1984)).

Jamarcus Brown concedes that the Court does not have general

jurisdiction over Non-facility Defendants. (See ECF No. 17 at 9-

15.) To conform with the Due Process Clause of the Fourteenth

11

Amendment, the Court must have specific jurisdiction over Non-

facility Defendants. Conn, 667 F.3d at 712–13. Specific

jurisdiction “focuses on the relationship among the defendant, the

forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283–

84 (2014) (internal quotation marks and citations omitted). This

Circuit has established a three-part test for determining whether

there is specific jurisdiction:

First, the defendant must purposefully avail himself of the

privilege of acting in the forum state or causing a

consequence in the forum state. Second, the cause of action

must arise from the defendant’s activities there. Finally,

the acts of the defendant or consequences caused by the

defendant must have a substantial enough connection with the

forum state to make the exercise of jurisdiction over the

defendant reasonable.

S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.

1968); see also AlixPartners, LLP v. Brewington, 836 F.3d 543,

549-50 (6th Cir. 2016); Harmer v. Colom, 650 F. App’x 267, 272

(6th Cir. 2016). The Court must have personal jurisdiction over

each defendant as to each asserted claim. Rush v. Savchuk, 444

U.S. 320, 332 (1980); Hosp. Auth. of Metro. Gov’t of Nashville v.

Momenta Pharm., Inc., 353 F. Supp. 3d 678, 690 (M.D. Tenn. 2018)

(citing Bd. of Forensic Document Exam’rs, Inc. v. ABA, 2017 WL

549031, at *3 (W.D. Tenn. Feb. 9, 2017)).

The relationship between each defendant is an illustrative

starting point. See Hatfield v. Allenbrooke Nursing & Rehab. Ctr.,

LLC, 2018 WL 3740565, at *30 (Tenn. Ct. App. Aug. 6, 2018)

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(detailing the relationship between the same defendants in another

suit involving a different nursing home). D&N and DTD are limited

liability companies with their principal place of business in New

York. (ECF No. 18-1 ¶ 26; No. 18-2 ¶ 26.) Each entity maintains

a fifty-percent membership interest in Quince. (ECF No. 18-1 ¶ 27;

No. 18-2 ¶ 27.) D&N and DTD likewise maintain a fifty-percent

membership interest in Aurora Cares, a New York limited liability

company. (ECF No. 1-1 ¶ 5; No. 17-3 at 13; No. 18-1 ¶ 9; No. 18-

2 ¶ 9.) Aurora Cares provides administrative support services to

nursing homes across the country, including Quince. (ECF No. 18-

1 ¶ 9; No. 18-2 ¶ 9.) Neither D&N nor DTD has employees or agents

in Tennessee. (ECF No. 18-1 ¶ 31; No. 18-2 ¶ 31.) The sole

manager and majority member of D&N is Bennett. (ECF No. 1-1 ¶ 9.)

Bennett is also a manager of Quince and serves as the Co-Chief

Executive Officer of Aurora Cares. (ECF No. 1-1 ¶ 9; No. 18-2

¶ 9.) Bennett served as an officer and member of the governing

body of Quince until December 2008. (ECF No. 18-3 ¶ 5(j)&(k).)

The sole manager and majority member of DTD is Denz. (ECF No. 1-

1 ¶ 8.) Denz is also a manager of Quince and serves as the Co-

Chief Executive Officer and Chief Financial Officer of Aurora

Cares. (ECF No. 1-1 ¶ 8; No. 18-1 ¶ 9.) Denz served as an officer

and member of the governing body of Quince until December 2008.

(ECF No. 18-3 ¶ 5(d)&(e).)

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1. Aurora Cares, LLC

To establish that the Court has personal jurisdiction over

Aurora Cares, Jamarcus Brown must first show that Aurora Cares

“purposefully avail[ed]” itself of “the privilege of acting in the

forum state or causing a consequence in the forum state.” Mohasco,

401 F.2d at 381. An entity purposefully avails itself when it

“create[s] ‘continuing obligations’ between [it]self and residents

of the forum.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476

(1985) (citing Travelers Health Ass’n v. Com. of Va. ex rel. State

Corp. Comm’n, 339 U.S. 643, 648 (1950)). Although a physical

presence is not required to assert jurisdiction, it “will enhance

a potential defendant’s affiliation with a [s]tate and reinforce

the reasonable foreseeability of suit there.” Id.

Jamarcus Brown has pled that Aurora Cares is the management

company of Quince and that Aurora Cares conducts business related

to the “operation, management, and/or control of Quince.” (ECF

No. 1-1 ¶ 5.) Non-facility Defendants submit declarations of Denz

and Bennett that state in relevant part that “Aurora Cares provides

administrative support services to nursing homes around the

country, including Quince . . . pursuant to an administrative

services agreement between Quince and Aurora Cares.” (ECF No. 18-

1 ¶ 9; No. 18-2 ¶ 9.) Two of those nursing homes are in Tennessee.

(Id.) Denz, as Co-CEO and CFO of Aurora Cares, states that he

14

“ha[s] occasionally traveled to Tennessee . . . to ensure that all

duties under the administrative services agreement between Quince

and Aurora Cares are carried out.” (ECF No. 18-1 ¶ 11.) Bennett,

as Co-CEO of Aurora Cares, states essentially the same. (ECF No.

18-2 ¶ 11.)

Aurora Cares has purposefully availed itself of the privilege

of acting in Tennessee. Its “substantial connection” with

Tennessee is its “avail[ment] [] of the privilege of conducting

business” by creating “continuing [contractual] obligations” with

Quince and another nursing home in Tennessee. Burger King, 471

U.S. at 475-76; see Air Prods., 503 F.3d at 551 (holding that

defendants purposefully availed themselves of a forum when they

entered into “a continuing business relationship that lasted a

period of many years”); see also Tenn. Code Ann. § 20-2-223(a)(2)

(providing for jurisdiction over a person1 who contracts to supply

services in Tennessee). Aurora Cares’ officers’ travels to

Tennessee to ensure that its contractual obligations were being

carried out were not “random,” “fortuitous,” or “attenuated”

contacts with Tennessee. Burger King, 471 U.S. at 476. Those

1 “Person” is defined by the statute as “an individual, executor,

administrator or other personal representative, or a corporation,

partnership, association or any other legal or commercial entity, whether

or not a citizen or domiciliary of this state and whether or not organized

under the laws of this state.” Tenn. Code Ann. § 20-2-221.

15

contacts increased the foreseeability that Aurora Cares would be

subject to suit in Tennessee. Id. The first Mohasco requirement

is satisfied. 401 F.2d at 381.

Second, Jamarcus Brown must show that his causes of action

arose from Aurora Cares’ activities in Tennessee. Id. This prong

may be satisfied if the “causes of action were ‘made possible by’

or ‘lie in the wake of’ the defendant’s contacts, or whether the

causes of action are ‘related to’ or ‘connected with’ the

defendant’s contacts with the forum state.” Air Prods., 503 F.3d

at 553 (citations omitted). “[T]his standard [i]s a ‘lenient

standard’ and . . . the cause of action need not ‘formally’ arise

from defendant’s contacts.” Id. (quoting Bird, 289 F.3d at 875).

Jamarcus Brown has submitted evidence that Aurora Cares

“provides support services including purchasing, financial

statement and cost report preparation, payroll, accounts

receivable and payable functions for [Quince].” (ECF No. 17-3 at

13.) Denz and Bennett state that “Aurora Cares does not hire or

fire the administrator or other managing employees of Quince, does

not control or have control over staffing levels at Quince, does

not control the budget and expenditures of Quince, and does not

implement and enforce the policies and procedures of Quince.” (ECF

No. 18-1 ¶ 10; No. 18-2 ¶ 10.)

16

Jamarcus Brown’s negligence, survival and wrongful death

claims rely on the theory that Rocky Brown’s injuries were due to

Quince’s lack of staff, staff training, staff monitoring, lack of

resources, failure to adopt and follow proper rules, regulations,

policies, plans, and guidelines, and overall, the failure to

provide a safe environment. (See ECF No. 1-1 ¶¶ 28(a)-(w).)

Jamarcus Brown has submitted evidence that these failings could,

in part, be due to the services that Aurora Cares provided to

Quince. (See ECF No. 17-3 at 13.) For example, Jamarcus Brown

has submitted evidence that Aurora Cares handles, among other

things, “purchasing” for Quince. (See id.) Jamarcus Brown alleges

that Defendants “fail[ed] . . . to provide the facility with

adequate resources to ensure sufficient non-medical (CNA) staffing

and supplies, such as diapers, linens, and towels, to care for all

residents, including Rocky [] Brown.” (ECF No. 1-1 ¶ 28(b).)

Taking the allegations in the Complaint and Jamarcus Brown’s

characterization of the services that Aurora Cares provided as

true, as the Court must at this stage, see Air Prods., 503 F.3d at

549 (citing Theunissen, 935 F.2d at 1459), Jamarcus Brown has

sufficiently pled that his claims arose from Aurora Cares’

activities in Tennessee. AlixPartners, 836 F.3d at 549-50; cf.

Hatfield, 2018 WL 3740565, at *33 (upholding a jury’s verdict

finding Aurora Cares directly liable for plaintiff’s injuries at

17

a nursing home because the evidence supported the finding that

Aurora Cares was an “integral figure in the care provided to” the

nursing home). The second Mohasco requirement is satisfied. 401

F.2d at 381.

Third, Jamarcus Brown must show that “the acts of the

defendant or consequences caused by the defendant [] ha[d] a

substantial enough connection with the forum state to make the

exercise of jurisdiction over the defendant reasonable.” Id. “In

determining whether the exercise of jurisdiction is reasonable,

the court should consider, among others, the following factors:

(1) the burden on the defendant; (2) the interest of the forum

state; (3) the plaintiff’s interest in obtaining relief; and

(4) other states’ interest in securing the most efficient

resolution of the policy.” Air Prods., 503 F.3d at 554–55 (citing

Intera Corp., 428 F.3d at 618). “When the first two elements [of

Mohasco] are met, an inference arises that the third, fairness, is

also present; only the unusual case will not meet this third

criterion.” First Nat’l Bank v. J.W. Brewer Tire Co., 680 F.2d

1123, 1126 (6th Cir. 1982).

Jamarcus Brown has satisfied the first two elements of

Mohasco. Aurora Cares presents no considerations that would render

the exercise of personal jurisdiction over it in Tennessee

unreasonable. “Tennessee has interests in resolving this case,

18

not the least of which is to provide a forum for the adjudication

of a dispute between a resident and a nonresident that has

purposefully availed itself of acting in and causing consequences

in Tennessee.” Third Nat’l Bank in Nashville v. WEDGE Grp. Inc.,

882 F.2d 1087, 1092 (6th Cir. 1989). The third Mohasco requirement

is satisfied. 401 F.2d at 381.

Jamarcus Brown has satisfied his “relatively slight” burden.

Air Prods., 503 F.3d at 549. The Court has specific personal

jurisdiction over Aurora Cares. Aurora Cares purposefully availed

itself of conducting business in Tennessee, Jamarcus Brown’s

claims plausibly arose from Aurora Cares’ actions in Tennessee,

and the exercise of jurisdiction over Aurora Cares is reasonable.

Mohasco, 401 F.2d at 381. Non-facility Defendants’ Motion to

Dismiss Aurora Cares on jurisdictional grounds is DENIED.

2. DTD HC, LLC and D&N, LLC

Jamarcus Brown must next show that the Court has personal

jurisdiction over DTD and D&N. Both DTD and D&N have a fifty-

percent ownership interest in Quince and Aurora Cares. (ECF No.

17-3 at 13; No. 18-1 ¶ 27; No. 18-2 ¶ 27.) Jamarcus Brown argues

that this Court has specific jurisdiction over DTD and D&N because

they “receive substantial revenue from Quince.” (ECF No. 17 at

14) (citing Tenn. Code Ann. § 20-2-223(4) for the proposition that

jurisdiction is proper over any person who derives substantial

19

revenue from services rendered in Tennessee.)2 Jamarcus Brown

argues that the revenue DTD and D&N received “depleted the

resources available to provide staffing, supplies and care to

residents [at Quince], including [Rocky] Brown, which resulted in

his injuries.” (Id.)

DTD and D&N, as separate entities, do not have sufficient

minimum contacts with Tennessee for this Court to exercise personal

jurisdiction over them under the Mohasco test. 401 F.2d at 381.

Deriving substantial revenue from a subsidiary that is subject to

the jurisdiction of the court in the forum state, alone, is not

enough for a court to have jurisdiction over that subsidiary’s

parent company. See Cox v. Koninklijke Philips, N.V., 647 F. App’x

625, 629 (6th Cir. 2016) (citing Velandra v. Regie Nationale des

Usines Renault, 336 F.2d 292, 296 (6th Cir. 1964) (“[M]ere

ownership by a corporation of all of the stock of a subsidiary

amenable to the jurisdiction of the courts of a state may not alone

be sufficient to justify holding the parent corporation likewise

amenable.”)).

2 Although satisfaction of § 20-2-223(4) might appear sufficient on its

face for the exercise of personal jurisdiction in Tennessee courts, the

jurisdictional limits of Tennessee law and federal due process are

coterminous. Both Tennessee and federal courts are constrained by the

Due Process Clause of the Fourteenth Amendment and jurisdiction must be

proper under the confines of that Clause. See Theunissen, 935 F.2d at

1459 (stating that a defect in federal Due Process considerations “would

foreclose the exercise of personal jurisdiction even where a properly

construed provision of the long-arm statute would otherwise permit it”).

20

The Court does, however, have personal jurisdiction over DTD

and D&N. It is compatible with the federal Due Process Clause for

a court to exercise personal jurisdiction over entities that would

not ordinarily be subject to personal jurisdiction in the court

when the entities are substantively legally related to an entity

that is subject to personal jurisdiction in the court. See 4A

Wright & Miller, Federal Practice & Procedure, § 1069.4 (4th ed.

2019) (collecting cases in which federal courts have exercised

personal jurisdiction over defendants through subsidiaries,

partnerships, alter egos, related and unrelated companies,

successors-in-interest, companies acting as agents, and a number

of other instances); see generally Lea Brilmayer & Katheen Paisley,

Personal Jurisdiction and Substantive Legal Relations:

Corporations, Conspiracies, and Agency, 74 Calif. L. Rev. 1 (1986).

The relevant theory here, which this Circuit and Tennessee

have adopted, is the “alter-ego theory of personal jurisdiction,”

which “‘provides that a non-resident parent corporation is

amenable to suit in the forum state if the parent company exerts

so much control over the subsidiary that the two do not exist as

separate entities but are one and the same for purposes of

jurisdiction.’” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430,

450-51 (6th Cir. 2012) (citing Estate of Thomson v. Toyota Motor

Corp. Worldwide, 545 F.3d 357, 362 (6th Cir. 2008) (collecting

21

cases)); accord Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635,

652 (Tenn. 2009). If a subsidiary’s parent company’s “separate

corporate status is formal only and without any semblance of

individual identity, then the subsidiary’s business will be viewed

as that of the parent and the latter will be said to be doing

business in the jurisdiction through the subsidiary for purposes

of asserting personal jurisdiction.” Wright & Miller, § 1069.4.

When analyzing whether the alter-ego theory of personal

jurisdiction is satisfied in diversity actions, the Court looks to

the forum state’s substantive law. See Thomson, 545 F.3d at 362

(applying Ohio law in analyzing personal jurisdiction under alter-

ego theory in diversity action); Hilani v. Greek Orthodox

Archdiocese of Am., 863 F. Supp. 2d 711, 720-21 (W.D. Tenn. 2012)

(same, applying Tennessee law); Gordon, 300 S.W.3d at 652 (“[The]

determin[ation] [of] whether one corporation is an alter-ego of

another for jurisdictional purposes is controlled by state law.”)

(citing Jemez Agency, Inc. v. CIGNA Corp., 866 F. Supp. 1340, 1343

(D.N.M. 1994)).

The alter-ego theory applies to limited liability companies

as well as corporations. Quince, Aurora Cares, DTD, and D&N are

limited liability companies. In Tennessee, a limited liability

company is “a hybrid of partnerships and corporations.” State v.

Thompson, 197 S.W.3d 685, 692 n.6 (Tenn. 2006) (citing Tenn. Code

22

Ann. §§ 48-201-101, et seq.). The case law governing corporations

is equally applicable to the analysis here. See Hatfield, 2018 WL

3740565, at *36-44; Edmunds v. Delta Partners, L.L.C., 403 S.W.3d

812, 828 (Tenn. Ct. App. 2012) (“The doctrine of piercing the

corporate veil applies equally to cases in which a party seeks to

pierce the veil of a limited liability company . . . .”).

Under Tennessee law, the Court has personal jurisdiction over

an entity defendant under the alter-ego theory if a plaintiff

demonstrates: “(1) that the subsidiary corporation is a sham or

dummy[;] (2) that the two corporations are, in fact, identical and

indistinguishable[;] or (3) that the subsidiary corporation is

merely an instrumentality, agent, conduit, or adjunct of the parent

corporation[.]” Gordon, 300 S.W.3d at 653 (citations omitted).

The key inquiry is whether “the parent corporation ‘exercises

complete dominion over its subsidiary . . . so that the corporate

entity . . . had no separate mind, will or existence of its own.’”

Id. (citing Cont’l Bankers Life Ins. Co. of the S. v. Bank of

Alamo, 578 S.W.2d 625, 632 (Tenn. 1979)); see also Restatement

(Second) of Conflict of Laws § 52 (1971) (“Judicial jurisdiction

over a subsidiary corporation will likewise give the state judicial

jurisdiction over the parent corporation if the parent so controls

and dominates the subsidiary as in effect to disregard the latter’s

independent corporate existence.”).

23

Non-facility Defendants concede that the Court has personal

jurisdiction over Quince. (ECF No. 9-1 at 13.) The Court has

personal jurisdiction over Aurora Cares. Because Non-facility

Defendants concede that personal jurisdiction over Quince is

proper, and because the Court has personal jurisdiction over Aurora

Cares, personal jurisdiction over DTD and D&N comports with the

Due Process Clause of the Fourteenth Amendment so long as Jamarcus

Brown has adequately pled the alter-ego theory as to Quince or

Aurora Cares. See In re Commodity Exch., Inc., 213 F. Supp. 3d

631, 680 (S.D.N.Y. 2016).

DTD and D&N have no employees. (ECF No. 9-1 at 4-5.) Denz

and Bennett are respective members and managers of each LLC. (ECF

No. 1 ¶¶ 7-8; see No. 9-1 at 6.) Jamarcus Brown argues that “Denz

and Bennett are managers of” DTD and D&N and that Denz and Bennett

“retain exclusive control over each [entity].” (ECF No. 17 at 8;

see also No. 1-1 ¶¶ 8, 9.) Jamarcus Brown argues that Denz and

Bennett, as managers of DTD and D&N, “drafted the operating

agreements for [Quince] and, . . . made themselves sole managers

with ‘complete, full and exclusive discretion, power and authority

in the management and control’ of [Quince].” (ECF No. 17 at 14)

(quoting No. 17-1 at 7-9.) Jamarcus Brown argues that Denz and

Bennett “are the governing body members of Quince with exclusive

regulatory duties to manage and operate the facility” and that

24

those duties included the responsibility to appoint the nursing

home’s administrator, to implement policies regarding the

management and operation of the nursing home, and to implement

quality assurance and performance improvement programs. (Id. at

14-15.) He argues that both men executed Quince’s property lease.

(Id. at 8-9) (citing No. 17-5 at 10-16.) Jamarcus Brown points

out that DTD and D&N own Aurora Cares, Denz and Bennett are

officers of Aurora Cares, and Denz and Bennett travel to Tennessee

to check on Aurora Cares’ contractual obligations. Jamarcus Brown

attaches sufficient evidence to support his assertions. He

concludes that DTD and D&N, through Denz and Bennett, own, operate,

control, manage, and profit from Quince and Aurora Cares in such

a way that the entities are “practically indistinguishable from

one another.” (ECF No. 17 at 5-6.)

Denz and Bennett submit affidavits in which they specifically

deny Jamarcus Brown’s assertions. (See ECF No. 17-2 ¶¶ 10, 12-

14, 17-20, 24, 28-29, 36; No. 18-2 ¶¶ 10, 12-14, 17-19, 20, 24,

28-29, 36.) Bo Maynard, a former Executive Director at Quince,

also submits a declaration in which he denies some of Jamarcus

Brown’s assertions. (See ECF No. 18-3 ¶¶ 3, 5, 8, 10, 11, 12.)

Courts have asserted jurisdiction over parent companies in

situations similar to that here. See, e.g., Third Nat’l Bank, 882

F.2d at 1090-92 (holding that the district court had personal

25

jurisdiction over a parent company when, among other things, the

parent company was a 100% owner of the subsidiary and had officers

serving on the subsidiary’s board, the subsidiary’s board met

regularly in Tennessee to review and direct the subsidiary’s

operations, and the parent was involved in multiple contracts

involving the subsidiary); Carrier Corp., 673 F.3d at 450–51

(similar); Hardaway v. Quince Nursing & Rehab. Ctr., LLC, No. 2:19-

cv-2464, 2020 WL 4106440, at *9 (W.D. Tenn. July 20, 2020),

reconsideration denied, No. 2:19-cv-2464, 2020 WL 4507327 (W.D.

Tenn. Aug. 5, 2020); Jones v. Arcadia Nursing & Rehab. Ctr.,

L.L.C., No. 15-cv-2910, 2017 WL 1193735, at *3-4 (W.D. La. Mar.

29, 2017), reconsideration denied, 2017 WL 6816738 (W.D. La. May

24, 2017) (asserting personal jurisdiction over DTD and D&N in

circumstances similar to those here).

There is sufficient evidence in the record for Jamarcus Brown

to meet his “relatively slight” burden to establish an alter-ego

theory of personal jurisdiction over DTD and D&N. Air Prods., 503

F.3d at 549; Gordon, 300 S.W.3d at 652. That finding is

appropriate even given the contradicting evidence Non-facility

Defendants submit. (ECF Nos. 18-1; 18-2; 18-3); see Serras, 875

F.2d at 1214 (if a plaintiff meets his burden in establishing

jurisdiction, “the motion to dismiss should be denied,

notwithstanding any controverting presentation by the moving

26

party”) (internal citation and quotation marks omitted);

Theunissen, 935 F.2d at 1464 (similar); Jones, 2017 WL 1193735, at

*4 (asserting personal jurisdiction and rejecting similar,

“artfully crafted” affidavits submitted by Denz and Bennett). The

Court has personal jurisdiction over DTD and D&N under an alter-

ego theory of personal jurisdiction.3 Non-facility Defendants’

Motion to Dismiss as to DTD and D&N is DENIED.

Both parties rely on the Tennessee Court of Appeals’ decision

in Hatfield. See 2018 WL 3740565. The same Non-facility

Defendants were defendants in Hatfield. See id. at *1. After the

trial court had denied Non-facility Defendants’ motions to

dismiss, the case went to trial and a jury awarded the plaintiff

substantial damages. Id. at *1-3. On appeal, Non-facility

Defendants asked the appellate court to determine, inter alia, two

issues relevant to those here: (1) whether the trial court erred

in failing to dismiss Denz, Bennett, DTD, and D&N for lack of

personal jurisdiction; and (2) whether the trial court erred in

considering Denz, Bennett, DTD, D&N, and Aurora Cares as alter-

egos by allowing the jury to pierce the corporate veil and

disregard the separate individuals and entities. Id. at *4-5.

3 Because Jamarcus Brown has adequately alleged personal jurisdiction

under an alter-ego theory, the Court need not reach Jamarcus Brown’s

argument that personal jurisdiction is proper under a conspiracy

jurisdiction theory. In re Commodity Exch., Inc., 213 F. Supp. 3d at

680 n.41.

27

Addressing personal jurisdiction, the trial court in Hatfield

found that Denz, Bennett, DTD, and D&N had sufficient minimum

contacts with Tennessee to assert personal jurisdiction over them,

or, alternatively, Denz, Bennett, DTD, and D&N had waived their

lack-of-personal-jurisdiction defense “when [they] sought

affirmative relief from the Court in the form of [several listed

motions and orders].” See id. at *6 (citing the trial court’s

order). The Court of Appeals affirmed the trial court’s finding

of waiver and did not reach the trial court’s substantive findings.

Id. at *6-8. Non-facility Defendants have not waived the lack-

of-personal-jurisdiction defense in this case. Although

illustrative, Hatfield offers no assistance on the substantive law

of personal jurisdiction.

Addressing alter-ego and corporate veil-piercing issues, the

Court of Appeals considered the sufficiency of the jury’s findings

of liability, how the jury was charged on veil-piercing, and the

legal test for findings of fact. See id. at *36-42. Standards of

review and analyses of personal jurisdiction differ from issues of

liability and findings about the sufficiency of a jury’s verdict.

Although illustrative, Hatfield does not assist the Court in

deciding the alter-ego and corporate veil-piercing personal

jurisdiction arguments presented here.

28

3. Donald T. Denz, Norbert Bennett, and the Fiduciary-Shield

Doctrine

The Court has personal jurisdiction over Denz and Bennett

under the Mohasco test. 401 F.2d at 381. Denz and Bennett state

that they have traveled to Tennessee to “ensure that all duties

under the administrative services agreement between Quince and

Aurora Cares are carried out.” (ECF No. 18-1 ¶ 11; No. 18-2 ¶ 11.)

Jamarcus Brown pled that the services Aurora Cares provided, and

decisions Denz and Bennett made about those services, led to the

injuries that Rocky Brown sustained. (See ECF No. 1-1 ¶¶ 28(a)-

(w).) Jamarcus Brown has pled that other administrative decisions

Denz and Bennett made about the management of Quince led to the

injuries that Rocky Brown sustained. (Id. ¶¶ 31-40.) Jamarcus

Brown has offered sufficient evidence to support his assertions.

See Mohasco, 401 F.2d at 381.

Non-facility Defendants argue that the Court cannot exercise

jurisdiction over Denz and Bennett in their individual capacities

because they are protected by the fiduciary-shield doctrine. (ECF

No. 9-1 at 13-15.) The Tennessee Court of Appeals4 has recognized

4 “Though the Tennessee Supreme Court has not squarely addressed the

[fiduciary-shield doctrine], when ‘an intermediate appellate state court

rests its considered judgment upon the rule of law which it announces,

that is a datum for ascertaining state law which is not to be disregarded

by a federal court unless it is convinced by other persuasive data that

the highest court of the state would decide otherwise.’” Church Joint

Venture, L.P. v. Blasingame, 947 F.3d 925, 932 (6th Cir. 2020) (quoting

West v. AT&T, 311 U.S. 223, 237 (1940)).

29

the fiduciary-shield doctrine, which precludes jurisdiction over

individuals who act exclusively as corporate officers on behalf of

a bona fide corporation. See, e.g., Boles v. Nat’l Dev. Co., 175

S.W.3d 226, 251 (Tenn. Ct. App. 2005) (citing Stuart v. Spademan,

772 F.2d 1185, 1197 (5th Cir. 1985)); accord Balance Dynamics Corp.

v. Schmitt Indus., Inc., 204 F.3d 683, 697 (6th Cir. 2000). Non-

facility Defendants contend that the contacts Denz and Bennett had

with Tennessee were carried out solely in their corporate rather

than their individual capacities and that they are protected by

the fiduciary-shield doctrine. (ECF No. 9-1 at 13-15; No. 18-1 ¶

11; No. 18-2 ¶ 11.)

The fiduciary-shield doctrine does not provide blanket

protection to corporate officers. “In a diversity action, the law

of the forum state dictates whether personal jurisdiction exists,

subject to constitutional limitations.” Intera Corp., 428 F.3d at

615 (citations omitted). Because Tennessee’s long-arm statute is

coterminous with federal due process, Parker, 938 F.3d at 839;

First Cmty. Bank, 489 S.W.3d at 384, federal due process

limitations govern the fiduciary-shield analysis, see Simplex

Healthcare, Inc. v. Marketlinkx Direct, Inc., 761 F. Supp. 2d 726,

730-33 (M.D. Tenn. 2011). Courts have questioned whether the Due

Process Clause of the Fourteenth Amendment -- a “constitutional

limitation[]” -- implicates the fiduciary-shield doctrine. See

30

id. (collecting cases); see also Hardaway, 2020 WL 4106440, at

*10-11; Johnson v. Gray, 2011 WL 13228171, at *6 (E.D. Tenn. Sept.

16, 2011) (rejecting the application of the fiduciary-shield

doctrine as applied to a Tennessee breach-of-contract claim); MCA

Records, Inc. v. Highland Music, Inc., 844 F. Supp. 1201, 1203

(M.D. Tenn. 1993) (“Where the forum state’s long-arm statute is

coextensive with the full reach of due process, the fiduciary

shield doctrine is inapplicable.”); 3A William M. Fletcher,

Fletcher Cyclopedia of the Law of Corporations § 1296.20 (2019)

(“The fiduciary shield doctrine is not available where the forum

state’s long-arm statute is coextensive with the full reach of due

process.”) (collecting cases).

This Circuit has, as a practical matter, read the fiduciary-

shield doctrine out of existence for purposes of personal

jurisdiction:

While it is true that jurisdiction over the individual

officers of a corporation cannot be predicated merely upon

jurisdiction over the corporation, we hold that the mere fact

that the actions connecting defendants to the state were

undertaken in an official rather than personal capacity does

not preclude the exercise of personal jurisdiction over those

defendants. Hence, where an out-of-state agent is actively

and personally involved in the conduct giving rise to the

claim, the exercise of personal jurisdiction should depend on

traditional notions of fair play and substantial justice;

i.e., whether she purposely availed herself of the forum and

the reasonably foreseeable consequences of that availment.

Balance Dynamics, 204 F.3d at 698 (citations and quotation marks

omitted); see also Wright & Miller, § 1069.4 (“[P]ersonal

31

jurisdiction over individual officers and employees of a

corporation may not be predicated on the federal court’s

jurisdiction over the corporation itself, unless the individuals

are engaged in activities within the forum that would subject them

to jurisdiction.”) (collecting cases) (emphasis added). The

Supreme Court’s prior holdings comport with this understanding.

See Calder v. Jones, 465 U.S. 783, 790 (1984) (“[Defendants’]

status as employees does not somehow insulate them from

jurisdiction. Each defendant’s contacts with the forum State must

be assessed individually.”); Keeton v. Hustler Magazine, Inc., 465

U.S. 770, 781 n.13 (1984) (citing Calder for “reject[ing] the

suggestion that employees who act in their official capacity are

somehow shielded from suit in their individual capacity”). This

reading is consistent with the practical application of the

doctrine in Tennessee state courts. See Simplex, 761 F. Supp. 2d

at 731 (“No Tennessee state court has ever applied the doctrine to

bar jurisdiction.”).

Denz and Bennett’s assertation that they were acting solely

in their official capacity is not determinative for purposes of

jurisdiction. The question is whether they were “actively and

personally involved in the conduct giving rise to the claim[s],”

regardless of the capacity in which they were acting. Balance

Dynamics, 204 F.3d at 698. Because Denz and Bennett were plausibly

32

“actively and personally involved in the conduct giving rise to

[Jamarcus Brown’s] claim[s],” and because asserting jurisdiction

over them would comport with the “traditional notions of fair play

and substantial justice,” they are not protected by the fiduciary

shield from the assertion of jurisdiction. Balance Dynamics, 204

F.3d at 698; see Nat’l Can Corp. v. K Beverage Co., 674 F.2d 1134,

1137 (6th Cir. 1982) (finding jurisdiction over defendant in his

individual capacity when he was the president of a corporation,

traveled to the forum state once a month to oversee the company’s

business, and executed a contractual agreement in the forum state);

see also Flynn v. Greg Anthony Constr. Co., 95 F. App’x 726, 740-

41 (6th Cir. 2003) (holding that the vice-president and the

president of two corporations were subject to jurisdiction in their

individual capacities because of “their involvement in

orchestrating the affairs” of the companies’ business in the forum

state); Commodigy OG Vegas Holdings LLC v. ADM Labs, 417 F. Supp.

3d 912, 924 (N.D. Ohio 2019) (“When an individual defendant engages

in solicitation and negotiations that give rise to a ‘continuing

obligation,’ that defendant is not protected by the fiduciary

shield doctrine and is subject to personal jurisdiction in the

forum state.”); Walker v. Concoby, 79 F. Supp. 2d 827 (N.D. Ohio

1999) (fiduciary-shield doctrine did not preclude exercise of

personal jurisdiction, under Ohio long-arm statute, over non-

33

resident defendants who personally involved themselves in the

transaction giving rise to the cause of action and were physically

present in state, even if they were acting on behalf of

corporation); Superior Consulting Co., Inc. v. Walling, 851 F.

Supp. 839 (E.D. Mich. 1994), appeal dismissed and remanded on other

grounds, 48 F.3d 1219 (6th Cir. 1995) (fiduciary-shield doctrine

did not insulate former Texas employee from assertion of personal

jurisdiction in Michigan employer’s action to enforce covenant not

to compete when employee had significant contacts with Michigan in

personal capacity). Non-facility Defendants’ Motion to Dismiss

Denz and Bennett on jurisdictional grounds is DENIED.

B. Failure to State a Claim Under the THCLA

Non-facility Defendants argue that Jamarcus Brown’s THCLA

claims should be dismissed. (ECF No. 9-1 at 15-16; No. 18 at 9-

10.) They argue that the THCLA only allows health care liability

actions against “licensees, the licensee’s management company, the

licensee’s managing employees, or an individual caregiver who

provided direct health care services, whether an employee or

independent contractor.” (ECF No. 9-1 at 15-16) (citing Tenn.

Code. Ann § 29-26-102(a)). Non-facility Defendants argue that

they do not meet any of those definitions, that they are “passive

investors” and that “passive investors” are not liable under the

THCLA. (See id.) Jamarcus Brown argues that he has properly pled

34

that Non-facility Defendants meet the definitions under the THCLA

or, alternatively, that he has sufficiently pled ordinary

negligence claims against them. (ECF No. 17 at 17-20.) Jamarcus

Brown’s first argument is sufficient.

Non-facility Defendants submit three declarations with their

Motion and rely on them to support their arguments. (ECF Nos. 18-

1, 18-2, 18-3; see No. 18 at 7-8.) Although dismissal for lack of

personal jurisdiction is governed by Rule 12(b)(2), dismissal

based on insufficient pleading is governed by Rule 12(b)(6). Under

Rule 12(b)(6), the Court normally “may not consider matters beyond

the complaint.” Hensley Mfg., 579 F.3d at 613. The Court may

consider such matters if they are “referred to in [the] complaint

and central to the [plaintiff’s] claim.” Armengau, 7 F. App’x at

344. The declarations Non-facility Defendants attach to their

brief were not referred to in the Complaint and are not central to

Jamarcus Brown’s claims. The Court will not consider them in

evaluating Non-facility Defendants’ arguments about the

sufficiency of the Complaint. See Morris Aviation, LLC v. Diamond

Aircraft Indus., Inc., 730 F. Supp. 2d 683, 695 (W.D. Ky. 2010).

The THCLA limits who can bring an action under it:

(a) Except as provided in this section, a health care

liability action against a licensee may be brought only

against the licensee, the licensee’s management company,

the licensee’s managing employees, or an individual

caregiver who provided direct health care services,

whether an employee or independent contractor. A

35

passive investor shall not be liable under this part. A

health care liability action against any other

individual or entity may be brought only pursuant to

subsection (b).[5]

Tenn. Code Ann. § 29-26-102(a). A “licensee” is defined by the

statute as “a health care provider licensed, authorized,

certified, registered, or regulated under title 33, 63, or 68 that

is legally responsible for all health care services provided.”

Id. § 29-26-101(a)(3). “Management company” is defined as:

[A]n individual or entity that contracts with, or receives a

fee from, a licensee to provide any of the following services

to or for a licensee:

(A) Directly hiring or firing the administrator or

other managing employees of the licensee;

(B) Directly controlling or having control over the

staffing levels at the licensee;

(C) Directly controlling the budget and expenditures of

the licensee; or

(D) Directly implementing and enforcing the policies and

procedures of the licensee.

Id. § 29-26-101(a)(4)(A)-(D). A “passive investor” is “an

individual or entity that has an ownership interest in a licensee

but does not directly participate in the day-to-day decision making

or operations of the licensee.” Id. § 29-26-101(a)(5). A

“[l]icensee’s managing employee[]” is not defined. Non-facility

Defendants argue that Jamarcus Brown has not pled sufficient facts

5 Subsection (b) is not relevant here.

36

to sustain his causes of actions under the THCLA.6 (ECF No. 9-1

at 15-16; No. 18 at 9-10.)

Jamarcus Brown has pled that Aurora Cares is Quince’s

“management company” and that Jamarcus Brown’s “cause of action”

arose out of “business conducted by Aurora Cares, LLC in the

operation, management, and/or control of Quince . . . .” (ECF No.

1-1 ¶ 5.) He has pled that DTD, through Denz, “is responsible for

maintaining the nursing home’s finance department, which includes

accounts payable, payroll, accounts receivable, general ledger,

and financial statement preparation for Quince . . . .” (Id.

¶ 6.) He has pled that D&N, through Bennett, “engaged in contact

with facilities, made on-site visits, and is responsible for

providing continuous oversight regarding the direct care, contract

negotiations, purchasing, capital improvements, employee and

resident safety, and human resources for Quince . . . .” (Id.

¶ 7.) He has pled that Denz “actively manages Quince . . . and is

the manager of Quince []”; “retain[s] exclusive control over the

operations of Quince []”; and “is responsible for maintaining the

finance department, which includes accounts payable, payroll,

accounts receivable, general ledger, and financial statement

6 The parties do not dispute that Quince is a “health care provider” or

“licensee” as defined by the THCLA. (See ECF No. 1-1 ¶¶ 4, 27); Tenn.

Code Ann. § 29-26-101(a)(1); id. § 29-26-101(a)(2)(E); id. § 29-26-

101(a)(3).

37

preparation for Quince [], and controlled the financial operations

of Aurora Cares, LLC, Quince [], and DTD HC, LLC.” (Id. ¶ 8.)

Jamarcus Brown has pled that Bennett “actively manages

Quince . . . and is the manager of Quince []”; “retain[s]

exclusive control over the operations of Quince []”; and “is

responsible for maintaining contact with Quince [] and performing

on-site visits, providing continuous oversite of the operations of

the facility, Quince [], and controlled the financial operations

of Aurora Cares, LLC, Quince [], and D&N, LLC.” (Id. ¶ 9.)

Jamarcus Brown has pled that Non-facility Defendants’ failure

to perform their duties adequately led to Rocky Brown’s injuries.

(See id. ¶¶ 28(a)-(w), 35(a)-(h).) Jamarcus Brown’s pleading is

sufficient. Taking his factual allegations as true, as the Court

must do at this stage, see Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 570); Lorshbaugh v. Cmty. Heath Sys., Inc., 2019 WL

355529, at *2 (E.D. Tenn. Jan. 29, 2019), Jamarcus Brown has

adequately pled that Non-facility Defendants fall within the

THCLA’s definition of “management company” and/or “managing

employees.” Tenn. Code Ann. § 29-26-101(a)(4)(A)-(D). Non-

facility Defendants’ Motion to Dismiss on this ground is DENIED.

V. Conclusion

For the foregoing reasons, Non-facility Defendants’ Motion to

Dismiss is DENIED.

38

So ordered this 19th day of August, 2020.

/s/_Samuel H. Mays, Jr.________

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

39