Board of Trustees of The University of Alabama, The v. American Alternative Insurance Corporation et al

Filing 4

MEMORANDUM OPINION AND ORDER Defendant Willis's motion for a continuance is GRANTED, and the jurisdictional, status and scheduling conference is RESCHEDULED for 10:30 a.m., March 27, 2014, unless plaintiff files a timely motion to remand. Signed by Judge William M Acker, Jr on 3/18/14. (SAC )

FILED
2014 Mar-18 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE BOARD OF TRUSTEES OF THE }
UNIVERSITY OF ALABAMA,
}
}
Plaintiff,
}
}
v.
}
}
CHARLES D. WILLIS,
}
}
Defendant and
}
Cross-claimant,
}
}
v.
}
}
PHOENIX HEALTH CARE, INC., }
etc.
}
}
Third-Party Defendant.
}

CIVIL ACTION NO.
CV-14-AR-0360-S

MEMORANDUM OPINION AND ORDER
The court has before it the “consent” motion filed on this
date

by

defendant,

continuance

of

Charles

the

D.

Willis

“jurisdictional,

(“Willis”),
status

and

seeking

a

scheduling

conference” now set for March 20, 2014, pursuant to the order
entered on March 5, 2014.

The said motion for a continuance does

not explain why the motion could not have been filed sooner.
Neither does it suggest an alternative hearing date.

A hearing

date of tomorrow, March 19, 2014, would solve movant’s problem.
While the motion alleges the unavailability on March 20, 2014, of
Myron Allenstein and Rose Marie Allenstein, counsel for Willis, it
does not mention Timothy C. Burgess, who is still an attorney-ofrecord for Willis.

As a necessary allegation in Willis’s motion,

he alleges that “the continuance of the hearing will not prejudice
any party.”

In this allegation he may or may not be correct.

The court picked March 20, 2014 as a date that is within the
thirty-day window provided by 28 U.S.C. § 1447(c) for plaintiff,
The Board of Trustees of the University of Alabama, to file a
motion to remand on the basis of the procedural defect appearing
from the fact that the removing defendants did not remove within
the

thirty-day

window

provided

by

28

U.S.C.

§

1446(b).

If

plaintiff intends to waive this procedural defect and to acquiesce
to this court’s jurisdiction, it cannot, of course, be prejudiced
by the requested continuance. However, the order of March 5, 2014,
expressly informed the parties that “jurisdiction” would be a
subject of the hearing.
Under the circumstances, and in order to avoid any possible
prejudice to plaintiff, the court now shares with the parties the
admonition it agrees with, handed down by Professor Moore:
The majority view on this issue cuts against the general
rule that the removal statutes should be interpreted
strictly against removal.
As a practical matter,
however, a vigilant district court can accomplish its
objectives by holding an early pretrial conference, as
soon as a notice of removal is filed, to alert the
parties to any defects, and then wait for them to act in
a timely fashion.
2 Moores Federal Practice, § 107.41[1][a] (Matthew Bender 3d Ed.).
The present removal occurred on February 28, 2014.

On December 3,

2012, Willis filed his third-party complaint against Phoenix Health
Care, Inc., claiming benefits pursuant to a health insurance plan
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clearly covered by ERISA.

On April 30, 2013, Phoenix answered the

third-party complaint, admitting the existence of a benefit plan,
again, clearly covered by ERISA, and even interposed as its Third
Affirmative Defense the clearly true allegation that the “claim is
preempted by the Employee Retirement Income Security Act”.

The

case was clearly removable on that date, if not on December 3,
2012.
Benefit

claims

under

ERISA,

while

removable

as

federal

questions pursuant to 28 U.S.C. § 1331, can proceed in state
courts, which have concurrent jurisdiction over them.

This court

declines to remand the case sua sponte, but awaits the choice of
plaintiff as to which forum it prefers.

The court’s feelings will

not be hurt no matter plaintiff’s choice.

Meanwhile, Willis’s

motion for a continuance is GRANTED, and the jurisdictional, status
and scheduling conference is RESCHEDULED for 10:30 a.m., March 27,
2014, unless plaintiff files a timely motion to remand.
DONE this 18th day of March, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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