IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

USA	HOSPITALS,

Plaintiff,

v.

DAVID	KEMP,

Defendant.

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CIVIL	ACTION	NO.

15-00332-CB-M

ORDER

This	matter	is	before	the	Court	on	a	motion	to	dismiss	for	lack	of	subject	

matter	jurisdiction,	or	in	the	alternative	to	stay	proceedings,	filed	by	the	defendant,	

David	Kemp.		(Doc.	2.)		After	careful	consideration	of	the	motion,	Defendant’s	

supporting	brief	(Doc.	3), Plaintiff’s	response (Doc.	6),	and	Defendant’s	Reply	

(Defendant’s	reply,	the	Court	finds	that	the	motion	is	due	to	be	denied.

Background

This	action	was	initially	filed	in	the	Circuit	Court	of	Mobile	County	Alabama	

on	May	22,	2015.	On	June	26,	2015,	Kemp	filed	a	notice	of	removal	asserting	

removal	jurisdiction	based	on	diversity	of	citizenship	because	Kemp	is	a	resident	of	

Mississippi,	USA	Hospitals	is	an	Alabama	corporation	with	its	principal	place	of	

business	in	Mobile,	Alabama,	and	the	amount	in	controversy	exceeds	$75,000.

The	Complaint	is	simple.		It	alleges	that	Kemp	owes	USA	Hospitals	

$106,366.98	for	medical	treatment	rendered	to	Kemp	not	paid	by	insurance.		USA

seeks	to	recover	that	amount	plus	interest	and	attorney’s	fees	through	claims	of	

open	account,	account	stated,	and	breach	of	contract.		According	to	the	motion	to	

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dismiss,	these	charges	were	incurred	as	result	treatment	for	injuries	Kemp	received	

in	an	automobile	accident.		Kemp	“is	currently	in	settlement	negotiations	with	the	

[d]efendant	in	the	underlying	collision	case.”		(Def.’s	Br.	2,	Doc.	3.)		

On	May	29,	2014,	USA	Hospitals	filed	a	Notice	of	Hospital	Lien	in	the	Probate	

Court	of	Mobile	County,	Alabama.		This	lien	alleges,	in	relevant	part:

Under	the	provisions	of	Title	35,	Chapter	11,	Division	15,	Code	of	

Alabama,	1975,	notice	is	hereby	given	that	the	University	of	South	

Alabama	Hospitals,	a	public	body	corporate	whose	address	is	2451	

Fillingim	Street,	Suite	3040,	Mobile,	Alabama	3617,	claims	a	lien	for	all	

reasonable	charges	for	hospital	care	treatment	and	maintenance	by	

injuries	received	by[	]	David	Kemp.	.	.	.	Upon	any	and	all	actions	

claims,	counterclaims	and	demands	accruing	to	[Kemp],	and	upon	all	

judgments	settlements	and	settlement	agreements	entered	into	by	

virtue	thereof	on	account	of	injuries	giving rise	to	such	actions	claims,	

counterclaims	demands,	judgments,	settlements	or	settlement	

agreements	and	which	necessitated	such	hospital	care.	

(Doc.	2,	Ex.	A.)

Issues	Presented

Ironically,	Kemp has	invoked	this	Court’s	removal	jurisdiction	only	to	file a	

motion	to	dismiss	for	lack	of	subject	matter	jurisdiction	or,	alternatively,	to	stay.	

Kemp	argues,	in essence,	that	subject	matter	jurisdiction	is	lacking	because	Plaintiff	

has	also	filed	a	hospital	lien	and	the	amount	of	the	hospital	lien	cannot	be	

determined	until	the	underlying	personal	injury	claims	are	reduced	to	judgment.		In	

response,	USA	Hospitals argues	that	its	claims	are	not	based	on	the	hospital	lien	

statute.

Discussion

Kemp’s	motion	to	dismiss	or	to	stay	rests	entirely	on	Univ.	of	S.	Ala. Hosps.	v.	

Blackmon,	987	So.	2d	1138	(Ala.	Civ.	App.	2007),	a	case	involving	the disputed	

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amount	of	a	hospital	lien.		Blackmon arose	in	the	context	of	a	personal	injury	

lawsuit.		Blackmon,	who	was	injured	in	a	car	accident,	sued	the	automobile	and	tire	

manufacturers.		As	part	of	the	settlement	negotiations	in	that	suit,	“Blackmon	filed	a	

motion,	purportedly	pursuant	to	§	35-11-373.	.	.	in	which	she	asked	the	trial	court	to	

determine	the	validity	of	USAH’s	lien,	the	reasonable	amount	due	on	the	lien,	and	

the manner	in	which	.	.	.	her	potential	settlement	[proceeds]	.	.	.	should	be	

distributed	between	USAH	and	herself.”		Id. at	1140.		The	trial	court	subsequently	

entered	an	order	declaring	the	amount	of	the	lien.		Blackmon	settled	her	claims	

against	the	manufacturers,	but	that	settlement	was	not	reduced	to	judgment.		The	

hospital appealed	the	decision	with	respect	to	the	amount	of	the	lien.			The	Alabama	

Court	of	Civil	Appeals	held	that	the	trial	court	was	without	subject	matter	

jurisdiction	to	determine	the	amount	of	the	lien	because	the	underlying	claim,	i.e.

the	dispute	between	Blackmon	and	the	manufacturers,	had	not	been	reduced	to	

judgment.		Simply	put,	§	35-11-373,	gives	a	trial	court	jurisdiction	to	determine	the	

amount	of	a	hospital	lien	when	the	person	who	is	the	subject	of	the	lien	has	filed	a	

claim	in	that	court	and	the	claim	“has	been	reduced	to	judgment.”		Id.		The	clear	

language	of	the	statute,	according	to	the	appellate	court,	required	that the	

underlying	claim	be	reduced	to	a	judgment	before	the	trial	court	could	exercise	

jurisdiction	to	determine	the	amount.		Because	the	settlement	was	never	reduced	to	

a	judgment,	the	trial	court	lacked subject	matter	jurisdiction	under	the	lien	statute.

The	instant	case	is	not	controlled	by	Blackmon for	several	reasons.		First	and	

foremost,	no	party	has	asserted	jurisdiction	under	Ala.	Code	§	35-11-373,	which	was	

the	only	basis	for	subject	matter	jurisdiction	in	that	case.		Second,	this	case	does	not	

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involve	the	determination	of	the	amount	of	a	hospital	lien or	the	lien	statute.		

Instead,	it	is	a	suit	based	on	state	common	law	claims	for	money	owed	on	account	

and	breach	of	contract.		Moreover,	contrary	to	Kemp’s	argument,	nothing	in	

Blackmon or	in	the	hospital	lien	statute,	Ala.	Code	§§	35-11-370,	et	seq. preempts

common	law.		Kemp	has	pointed	to	no	Alabama	law	that	would	require	a	hospital	to	

choose	between	pursuing	a	lien	and	pursuing	a	common	law	claim.		Nor	has	he	cited	

any	law	that	would	require	a	hospital	to	await	the	outcome	of	the	patient’s	personal	

injury	action	before	instituting	a	collection	proceeding.					

Conclusion

For	the	foregoing	reasons,	Defendant’s	motion	to	dismiss	or,	alternatively,	to	

stay	is	DENIED.

DONE and	ORDERED this	the	27th day	of	July,	2015.

s/	Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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