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TIEMANN v. U.S.

January 11, 2000

ROBERT TIEMANN AND THELMA TIEMANN, HIS WIFE, PLAINTIFFS,
V.
U.S. HEALTHCARE INC. AND CORPORATE HEALTH ADMINISTRATORS, INC. AND HEALTH MAINTENANCE ORGANIZATION OF PENNSYLVANIA AND FAMILY MEDICAL ASSOCIATES OF ABINGTON, INC. AND NORMAN M. WERTHER, M.D. AND EVAN KESSLER, D.O. AND ANTHONY G. WYDAN, M.D., DEFENDANTS.



The opinion of the court was delivered by: Van Antwerpen, District Judge.

MEMORANDUM AND ORDER

I. INTRODUCTION

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.

II. FACTS*fn1

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.

Complaint, at ¶ 15.

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.

III. PROCEDURAL HISTORY

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, 1999.*fn3

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.

IV. STANDARD OF REVIEW

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 granted.

(A) Rule 12(b)(6)

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 12(b)(6).

(B) Remand Standard

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. . . .

28 U.S.C. § 1447(c).

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.

There would appear to be a patent defect in removal procedure in the case at bar. Moving Defendants filed their Notice of Removal on November 23, 1999, much later than the thirty day period prescribed by statute. See 28 U.S.C. § 1446(b). One might conclude that under no interpretation of that statutory provision could the notice of removal have been proper after October 11, 1999, the first business day following the date thirty days after the date the Plaintiffs filed their Complaint with the Prothonotary's Office and forwarded copies to ...


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