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.