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ROBCO OF AMERICA, INC. v. INSURANCE CO. OF NORTH A

March 9, 1994

ROBCO OF AMERICA, INC., Plaintiff
v.
INSURANCE COMPANY OF NORTH AMERICA and DIVERSIFIED GROUP ADMINISTRATORS, INC., Defendants. DIVERSIFIED GROUP ADMINISTRATORS, INC., Third-party Plaintiff v. PENNSYLVANIA HEALTH CHOICE PLAN, n/t/a ADVANTAGE HEALTH, Third-party Defendant.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 COHILL, D.J.

 Before this Court is (1) plaintiff Robco of America, Inc.'s (Robco) Motion to Remand (Doc. 6), and (2) third-party defendant Pennsylvania Health Choice Plan's (PHCP) Motion to Dismiss Third Party Complaint (Doc. 10). For the reasons below, we will grant Robco's motion to remand, and we will dismiss PHCP's motion to dismiss for lack of subject matter jurisdiction.

 I. Background

 On January 22, 1993, Robco commenced this action in the Court of Common Pleas of Allegheny County, Pennsylvania. Robco is a Pennsylvania corporation that maintained a self-funded health and welfare benefit plan (the "Plan") for its employees. Complaint P 5. Under the Plan, Robco contracted to reimburse employees and their dependents for covered medical expenses. Id. P 6. Defendant Insurance Company of North America (INA) provided an excess-loss insurance policy to Robco in which INA agreed to reimburse Robco for Robco's losses under the plan in excess of a specified amount. Id. PP 7, 9-11. Defendant Diversified Group Administrators, Inc. (Diversified) contracted with Robco to administer the Plan under an Administrative Services Agreement (the "Agreement"). Id. P 8.

 An employee of Robco, Mr. Larry Williams, submitted a claim for medical benefits relating to the hospitalization of his dependent children, who were covered under the Plan (the "Williams' claim"). Id. P 12. Diversified had precertified coverage for the hospitalization. Id. P 13. The Williams' claim exceeded Robco's liability limit, and Robco sought excess-loss coverage from INA, which INA did not provide. Id. P 14, 15.

 As a result, Robco filed a state-court complaint comprising three counts. Count one alleges INA breached the excess-loss insurance contract by failing to reimburse Robco for excess loss in paying the Williams' claim. Id. P 16. Count two alleges INA violated 42 Pa. C.S.A. § 8371 by its bad faith refusal to honor the excess-loss contract. Complaint P 22. Count three alleges Diversified breached the Agreement by improperly precertifying the Williams' claim. Id. P 25.

 II. Diversified's Lack of Consent to Removal

 The removal statute requires that a "defendant or defendants desiring to remove any civil action" shall file a notice of removal "signed pursuant to Rule 11 of the Federal Rules of Civil Procedure . . . ." 28 U.S.C. § 1446(a). INA indicated in its Notice of Removal filed November 23, 1993 that Diversified had consented to removal. Notice of Removal P 2. But Diversified later filed a "Notice of Lack of Consent for Removal" on December 21, 1993.

 The removal statute has been interpreted to mean, as Robco correctly points out, that multi-defendant removal is only proper, absent exceptions not relevant here, if all defendants consent to the removal. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985); Collins v. American Red Cross, 724 F. Supp. 353, 359-60 (E.D. Pa. 1989); 1A James W. Moore, Moore's Federal Practice P 0.168 (2d ed. 1987). If removal was improper, then this Court lacks subject matter jurisdiction and must dismiss the case pursuant to 28 U.S.C. § 1447(c). We find that Diversified's lack of consent to INA's removal renders the notice of removal deficient ab initio, and we therefore must grant the motion to remand for lack of subject matter jurisdiction. *fn1"

 In limited situations, we may permit a notice of removal to be amended to cure a jurisdictional defect. 28 U.S.C. § 1653; Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262 (5th Cir. 1988). But cure is not appropriate in this case: Diversified has specifically declined to consent to INA's removal. And as explained in some detail below, we would have remanded to the state court even if removal had been proper because we find neither complete preemption nor a well-pleaded ERISA-cognizable claim. *fn2"

 III. The Well-pleaded Complaint Rule and Complete Preemption

 In addition to its no-consent argument in support of remand, Robco asserts two other arguments. First, it argues that the action is not removable because its well-pleaded complaint does not raise a federal question. ...


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