The opinion of the court was delivered by: Van Antwerpen, District Judge.
Plaintiffs Robert Tiemann and Thelma Tiemann, his wife,
originally brought this action in the Court of Common Pleas of
Philadelphia County on June 10, 1999, by the filing of a Praecipe
to Issue Writ of Summons and a Writ of Summons. It was
subsequently removed to the U.S. District Court for the Eastern
District of Pennsylvania. Defendants have filed a motion with
this court to have the action dismissed for failure to state a
claim upon which relief can be granted; Plaintiffs have filed a
motion with this court to have the action remanded to the Court
of Common Pleas.
Between 1991 and 1995, Plaintiff Robert Tiemann was an employee
under a group health insurance plan provided by Defendants U.S.
Healthcare Inc., Corporate Health Administrators, Inc. and Health
Maintenance Organization of Pennsylvania (the "Moving
Defendants")*fn2 through Plaintiff's employment. Moving
Defendants, in exchange for premium payments, provided such group
health insurance coverage to Mr. Tiemann pursuant to a group
health insurance policy (the "Plan"). Complaint, at ¶¶ 9-10.
The other parties defendant, the individual physicians and
Family Medical Associates of Abington, Inc. (the "Physician
Defendants", and, together with the Moving Defendants, the
"Defendants"), were participating physicians and primary health
care providers of the Plan and rendered medical treatment and
health care services to Mr. Tiemann in return for compensation
received from Moving Defendants pursuant to the Plan. Complaint,
at ¶ 11.
During the course of the provision of such services, Defendants
learned, by September of 1991, that Mr. Tiemann suffered from
emphysema and the progression of the emphysematous condition of
his lungs. Plaintiffs allege either the failure of Defendants to
disclose the nature of his medical condition or the
misrepresentation of Mr. Tiemann's condition, or both. Mr.
Tiemann has suffered from a genetic disorder, Alpha-1 antitrypsin
deficiency disorder, a chronic, progressive disease that caused
emphysema and irreversible lung damage in Mr. Tiemann. Complaint,
at ¶¶ 12-13.
In late 1998, Mr. Tiemann was first notified of this diagnosis.
Mr. Tiemann has required and sought out medical treatment,
including Alpha-1 antitrypsin replacement therapy and placement
in a lung transplant program. Complaint, at ¶ 14.
As a result of Defendants' malfeasance and nonfeasance, Mr.
Tiemann's medical condition has deteriorated irreversibly. Early
detection of Mr. Tiemann's genetic disorder
would have permitted the implementation and rendition
of necessary medical treatment, including the
rendition of Alpha-1 antitrypsin replacement therapy
which would have prevented the deterioration of the
condition of [Mr. Tiemann's] lungs and the extent of
irreversible lung damage, which now requires and/or
which in the future will require the rendition of
lung transplantation for survival.
Plaintiffs further allege, inter alia, physical pain,
suffering, mental anguish, financial loss, loss of life's
pleasures, and loss of earnings, both now and in the future.
Their Complaint lists counts of negligence, breach of contract
and loss of consortium.
On June 10, 1999, Plaintiffs filed a Praecipe to Issue Writ of
Summons and a Writ of Summons in the Court of Common Pleas,
Philadelphia County. On June 22, 1999, Moving Defendants were
served by the Sheriff of Montgomery County. The Physician
Defendants were served with original process as well.
As a result, counsel for the Physician Defendants entered their
appearances in this matter from the end of June to mid-August. On
August 25, 1999, the Court of Common Pleas entered a Case
Management Order, which scheduled a case management conference
for October 1, 1999. However, the Moving Defendants had still not
entered their appearances.
On September 9, 1999, Plaintiffs filed their Complaint with the
Prothonotary's Office and forwarded a copy of the filed
Complaint, along with a copy of the Scheduling Order and Case
Management Conference Memorandum to all counsel of record and to
all unrepresented parties (i.e., the Moving Defendants).
On September 27, 1999, Plaintiffs' counsel made certain
discovery requests to Defendants and on October 1, 1999, all
counsel of record attended the case management conference.
Subsequent to the conference, the Court of Common Pleas issued a
Case Management Order. On October 15, 1999, Plaintiffs' counsel
responded to Physician Defendants' discovery requests. These
parties began planning a deposition schedule. The Physician
Defendants filed Preliminary Objections to Plaintiffs' punitive
damages and breach of
contract claims; Plaintiffs filed Replies on November 8 and 12,
On October 26, 1999 Plaintiffs' counsel was telephoned by
Tarleton David Williams, Jr., who identified himself as the
Moving Defendants' attorney in this matter and requested a faxed
copy of the Complaint. Plaintiffs' counsel fulfilled this request
and forwarded all other relevant documentation by overnight
courier. On November 15, 1999, two other attorneys, Charles M.
O'Donnell and Michael A. Bowman, entered their appearances on
behalf of U.S. Healthcare Inc.
On November 23, 1999, Bowman, on behalf of the Moving
Defendants, filed a Notice of Removal of this lawsuit from the
Court of Common Pleas to the U.S. District Court, E.D. of Pa., on
the basis of certain questions of federal law being implicated.
The next day, November 24, 1999, Bowman filed a Praecipe to Enter
the Notice of Removal with the Court of Common Pleas,
Philadelphia County, and followed with the filing in federal
court of "Defendants' U.S. Healthcare Systems, Inc. and Corporate
Health Administrators Inc.'s Motion to Dismiss Plaintiffs'
Complaint", on Rule 12(b)(6) grounds ("Motion to Dismiss"),
claiming federal preemption. "Plaintiffs' Response to Defendants
U.S. Healthcare Systems, Inc. and Corporate health
Administrators, Inc.'s Motion to Dismiss Plaintiffs' Complaint"
("Plaintiffs' Response") was filed on December 16, 1999.
Plaintiffs followed this with a motion of their own: "Plaintiffs'
Motion for Remand and Application of Sanctions", filed December
22, 1999 ("Motion for Remand"). On December 29, 1999, two
physician-defendants filed a "Motion to Dismiss of Defendants,
Evan Kessler, D.O. and Anthony G. Wydan, M.D. for Failure to
State a Claim Upon Which Relief Can Be Granted as to Plaintiffs'
Claim for Punitive Damages". Finally, Moving Defendants filed
Defendants' U.S. Healthcare Systems, Inc. and Corporate Health
Administrators Inc.'s Reply in Support of Their Motion to Dismiss
Plaintiffs' Complaint ("Moving Defendants' Reply"), which was
filed on January 6, 2000.
For the reasons stated below, Defendant's Motion to Dismiss
will be DENIED and Plaintiff's Motion for Remand will be GRANTED
in its entirety. The physician-defendants' Motion to Dismiss will
be DENIED as moot.
Moving Defendants are before this court with their Motion to
Dismiss Plaintiffs' action pursuant to Federal Rule of Civil
Procedure 12(b)(6). Additionally, Plaintiffs, through their
Motion for Remand, have moved to send this case back to the Court
of Common Pleas, Philadelphia County.
As we find that removal was improper, we shall GRANT
Plaintiffs' Motion for Remand. For the reasons discussed in
connection with our granting of Plaintiffs' Motion for Remand,
infra, we shall also DENY Moving Defendants' Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Nonetheless, we shall briefly review the standard for dismissal
for failure to state a cause of action upon which relief can be
Under Rule 12(b)(6), a defendant bears the burden of
demonstrating that a plaintiff has not stated a claim upon which
relief can be granted. See, e.g., Cohen v. Kurtzman,
45 F. Supp.2d 423, 429 (D.N.J. 1999) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied,
501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991)).
Under the present circumstances, Moving Defendants bear the
burden of demonstrating that Plaintiffs have not stated a claim
upon which relief can be granted. Cohen, 45 F. Supp.2d at 429.
Further, we are bound to "accept as true the facts alleged" in
Plaintiffs' Complaint "and all reasonable inferences that can be
drawn from them." Powell, 1998 WL 804727, at *3. Based on the
analysis revealed in our discussion of the lack of ERISA complete
preemption, infra, we do not believe that "no relief could be
granted under any set of facts that could be proved." Id.
Therefore, for reasons that will become eminently clear, we shall
deny Moving Defendants' request for dismissal under Rule
The statute that prescribes removal procedure states:
[t]he notice of removal of a civil action or
proceeding shall be filed within thirty days after
the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based, or within thirty days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not
required to be served on the defendant, whichever
period is shorter.
28 U.S.C. § 1446(b). Under the subsequent section, "Procedure
after removal generally":
[a] motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the
notice of removal under section 1446(a). If at any
time before final judgment it appears that the
district court lacks subject matter jurisdiction, the
case shall be remanded. An order remanding the case
may require payment of just costs and any actual
expenses, including attorney fees, incurred as a
result of the removal. . . .
Further, ignoring an exception not apposite to the case at bar,
"[a]n order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise. . . ."
28 U.S.C. § 1447(d). The U.S. Supreme Court has clarified this
statutory language in holding that only "remand orders issued
under [28 U.S.C. § 1447(c)] and invoking the grounds specified
therein . . . are immune from review under § 1447(d)." In re
U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998) (quoting
Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96
S.Ct. 584, 46 L.Ed.2d 542 (1976)). In other words, in order for
our decision to remand a case to be immune from review, it would
have to be issued due to a defect in removal procedure or the
lack of subject matter jurisdiction. Of course, it would be for
the Third Circuit Court of Appeals (the "Third Circuit") to
decide this question in any appeal.
We also note that "[r]emoval statutes are strictly construed
and all doubts are resolved in favor of remand." Weinstein v.
Paul Revere Ins. Co., 15 F. Supp.2d 552, 555 (D.N.J. 1998); see
also Batoff v. State Farm Ins., 977 F.2d 848, 851 (3d Cir.
1992); Miller v. Riddle Memorial Hosp., No. 98-392, 1998 WL
272167, at *2 (E.D.Pa. May 28, 1998) (both cited by Weinstein).
We shall not lose sight of this legal standard in our review of
the facts in the case at bar.