United States District Court, E.D. Pennsylvania
SHEILA DURNELL, on behalf of herself and all others similarly situated, et al., Plaintiffs,
GERARD FOTI, et al., Defendants.
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
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. 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).
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
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.)
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.
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.
Defendants timely filed a notice of removal
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.
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.
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. ...