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Durnell v. Foti

United States District Court, E.D. Pennsylvania

September 20, 2019

SHEILA DURNELL, on behalf of herself and all others similarly situated, et al., Plaintiffs,
v.
GERARD FOTI, et al., Defendants.

          MEMORANDUM

          SCHILLER, J.

         Shelia Durnell and Charles Opdenaker sued Gerald Foti, D.O., Suburban Spine and Orthopedic Center, LLC (“Suburban Spine”), Main Line Hospitals, Inc. (“Main Line”), and Crozer-Keystone Health System (“Crozer-Keystone”) in the Court of Common Pleas for Delaware County, Pennsylvania. Plaintiffs accuse Defendants of various violations of Pennsylvania law arising from alleged medical malpractice by Dr. Foti. Suburban Spine and Dr. Foti removed the case to federal court pursuant to the Class Action Fairness Act of 2005 (“CAFA”). Plaintiffs now seek remand on the grounds that removal was untimely and that this case falls within two exceptions to federal jurisdiction under CAFA. The Court finds neither argument persuasive and denies Plaintiffs’ motion for remand.

         I. BACKGROUND

         On April 26, 2019, Shelia Durnell and Charles D. Opdenaker (through his power of attorney Charles M. Opdenaker) - both residents of Pennsylvania - commenced this class-action lawsuit against Gerald Foti, D.O., Suburban Spine, Main Line, and Crozer-Keystone in the Court of Common Pleas for Delaware County, Pennsylvania.[1] According to the Complaint, Dr. Foti practices medicine in Pennsylvania, and Suburban Spine, Main Line, and Crozer-Keystone are each Pennsylvania corporations. The Complaint further alleges that Dr. Foti practiced medicine at three locations in Pennsylvania: Suburban Spine, Bryn Mawr Hospital (allegedly owned, operated, or managed by Main Line), and Crozer Chester Medical Center (allegedly owned, operated, or managed by Crozer-Keystone).

         Plaintiffs bring ten causes of action under Pennsylvania law, seeking to hold all defendants liable for Dr. Foti’s alleged malpractice, Plaintiffs seek to represent a class consisting of:

All individuals who were subjected to medically unnecessary or unindicated procedures, surgery and/or injections performed by Dr. Gerard Foti between 2011 to the present, at Suburban Spine and Orthopedic Center, Main Line Hospitals, Inc., Crozer-Keystone Health System and/or John Doe health System, and who, because of negligence, suffered injury; and loss of consortium claims filed on behalf of their spouses.

(Mem. of Law in Supp. of Pl.’s Mot. to Remand [Mem. in Supp. of Remand], at 1.)

         On July 9, 2019, Dr. Foti and Suburban Spine (“Defendants”) removed this case to federal court pursuant to CAFA, 28 U.S.C. § 1332. According to Defendants, this case meets the requirements for federal jurisdiction under CAFA because the putative class is minimally diverse from Defendants, consists of over 100 members, and, if successful, could receive an award in excess of five million dollars. Plaintiffs now move to remand.

         II. DISCUSSION

         Plaintiffs argue that federal jurisdiction is improper for two reasons: (1) Defendants’ notice of removal was untimely, and (2) this case falls into the home state (28 U.S.C. § 1332(d)(4)(B)) and local controversies (28 U.S.C. § 1332(d)(4)(A)) exception to CAFA’s grant of jurisdiction. For reasons discussed below, this Court finds that Defendants timely removed this case to federal court, this case meets the prerequisites for federal jurisdiction under CAFA, and Plaintiffs have not shown that any exception to CAFA applies. As a result, this Court finds that it has jurisdiction over this case pursuant to CAFA.

         A. Defendants timely filed a notice of removal

         Plaintiffs claim removal was untimely because Defendants filed their notice of removal more than thirty days after being served with the Complaint. When a case is removed to federal court, the party asserting jurisdiction must show that federal jurisdiction is proper. Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). A notice of removal of a civil action from state court to federal court must “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 . . . .” 28 U.S.C. § 1446(b). Defendants filed their notice for removal on July 9, 2019. As a result, defendants have the burden of showing they were not served with the Complaint on or before June 8, 2019.

         Defendants’ have met their burden by providing a copy of the docket for this action in the Delaware County Court of Common Pleas. (Def.’s Notice of Removal, Ex. C.) The docket contains no indication that Defendants were served on or before June 8, 2019. In fact the only reference to service of Dr. Foti and Suburban Spine indicates that service did not take place on June 4, 2019.

         Moreover, this claim appears to stem from a typographical error in Defendants’ initial removal notice, which stated that Defendants were served on June 4, 2019 – more than thirty days before filing their notice of removal. (Gerard Foti, D.O. and Suburban Spine and Orthopedic Center, LLC’s Notice of Removal [Def.’s Notice of Removal] ¶ 14, ECF No. 1.) In a later filing however, Defendants indicated this was an error and that they intended to state that they had not been served on June 4, 2019. (Mem. of Law in Supp. of Def.’s Gerrard Foti, D.O. and Suburban Spine and Orthopedic Center, LLC’s Mot. for Leave to Am. Notice of Removal, at 2-3.) Defendants have since amended their notice of removal, asserting that they were not served on June 4, 2019. (Gerard Foti, D.O. ...


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