Surgcenter of Western Maryland, LLC. v. Cigna Health and Life Insurance Co. et al
Filing
34
MEMORANDUM and ORDER DENYING 20 motion for remand, DENYING 16 motion to dismiss, CONSOLIDATING this action for all purposes under Civil Action No. DKC 14-2376, DIRECTING the parties to inform the court within 7 days if the complaint, once consolidated, should be dismissed pursuant to the joint stipulation for dismissal and related order in the consolidated suit, and DIRECTING the Clerk to CLOSE this case. Signed by Judge Deborah K. Chasanow on 12/30/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SURGCENTER OF WESTERN MARYLAND,
LLC
:
v.
:
Civil Action No. DKC 15-3147
:
CIGNA HEALTH AND LIFE
INSURANCE CO., et al.
:
MEMORANDUM OPINION AND ORDER
Presently pending and ready for resolution are (1) a motion
to remand filed by Plaintiff Surgcenter of Western Maryland, LLC
(“Plaintiff”) (ECF No. 20), and (2) a motion to dismiss filed by
Defendants Cigna Health and Life Insurance Co., et al. (“Cigna”
or “Defendants”) (ECF No. 16).
Both motions will be denied, but
this case will be consolidated with Conn. General Life Ins. Co.,
et al. v Advanced Surgery Center of Bethesda, LLC, et al., Civil
Action No. DKC 14-2376 (the “consolidated suit”).
I.
Background
On October 15, 2015, Cigna removed the captioned case from
the
District
jurisdiction
Court
under
of
the
Maryland,
complete
asserting
preemption
federal
provisions
question
of
Employee Retirement Income Security Act of 1974 (“ERISA”).
the
(ECF
No. 1).
Plaintiff filed its initial complaint in state court on May
15, 2015.
(ECF No. 2).
On August 4, 2015, Plaintiff filed an
amended complaint in state court, which is styled as a bad faith
insurance claim, asserting that Plaintiff performed a medically
necessary surgery procedure on a patient who has Cigna health
insurance and that Cigna wrongfully refused to pay Plaintiff’s
claim.
(ECF No. 3).
The complaint identifies the patient only
by the last 4 digits of his or her patient identification number
and the date of the surgery.
II.
Analysis
A.
Motion to Remand
As described in Lovern v. Gen. Motors Corp., 121 F.3d 160,
161-62 (4th Cir. 1997):
Section 1446 of Title 28, establishing
procedures
for
removal
of
any
case
authorized to be removed by 28 U.S.C. §
1441, provides that a defendant desiring to
remove a civil case from state court to
federal court must file a “notice of removal
signed pursuant to Rule 11 of the Federal
Rules of Civil Procedure and containing a
short and plain statement of the grounds.”
28 U.S.C. § 1446(a). The notice must be
filed within 30 days after service on the
defendant of initial process, or “[i]f the
case stated by the initial pleading is not
removable,” the notice may be filed within
thirty days after receipt by the defendant,
through service or otherwise, of a copy of
an amended pleading, motion, order or other
paper from which it may first be ascertained
that the case is one which is or has become
removable. 28 U.S.C. § 1446(b).
Although the statute has been amended since the Lovern decision
in 1997, the operative language remains the same.
2
The issues of
whether the initial complaint is removable, and what is meant by
being able to ascertain that the case is one which is or has
become removable, have generated varying interpretations.
In
Lovern, the court concluded that:
[O]nly where an initial pleading reveals a
ground for removal will the defendant be
bound to file a notice of removal within 30
days. Where, however, such details are
obscured or omitted, or indeed misstated,
that circumstance makes the case “stated by
the initial pleading” not removable, and the
defendant will have 30 days from the
revelation of grounds for removal in an
amended pleading, motion, order, or other
paper to file its notice of removal,
provided that, in diversity cases, no more
than a year shall have passed from the date
of the initial pleading.
121 F.3d at 162.
Furthermore, the Fourth Circuit held that a
court should not “inquire into the subjective knowledge of the
defendant,” but may “rely on the face of the initial pleading
and on the documents exchanged in the case by the parties to
determine
when
the
defendant
had
notice
of
the
grounds
for
removal, requiring that those grounds be apparent within the
four corners of the initial pleading or subsequent paper.”
Id.
More recently, a district judge has summarized the case law
on this topic:
The Fourth Circuit has adopted an
objective test to determine the meaning of
the phrase “from which it may first be
ascertained” in § 1446(b)(3): “[W]e will not
require
courts
to
inquire
into
the
3
subjective knowledge of the defendant, an
inquiry that could degenerate into a minitrial regarding who knew what and when.
Rather, we will allow the court to rely on
the face of the initial pleading and on the
documents exchanged in the case by the
parties to determine when the defendant had
notice of the grounds for removal, requiring
that those grounds be apparent within the
four corners of the initial pleading or
subsequent paper.” Lovern, 121 F.3d at 162
(emphasis added) (citing Foster v. Mut.
Fire, Marine & Inland Ins. Co., 986 F.2d 48,
53–54 (3d Cir. 1993) (“[T]he relevant test
is not what the defendants purportedly knew,
but what these documents said.)); see also
Chapman v. Powermatic, Inc., 969 F.2d 160,
163 (5th Cir. 1992) (adopting same test)
(“[I]t
promotes
certainty
and
judicial
efficiency
by
not
requiring
courts
to
inquire into what a particular defendant may
or may not subjectively know.”).
Some courts applying Lovern’s objective
test have concluded that pleadings or other
paper that merely provide “a clue” removal
is available trigger the thirty-day clock
for timely removal. See Stenger v. Carelink
Healthplans, Inc., No. 5:10CV109, 2011 WL
2550850, at *2 (N.D.W.Va. June 27, 2011)
(Stamp, J); King v. Homeside Lending, Inc.,
No. 2:03–2134, 2007 WL 1009383, at *3 (S.D
.W.Va. Mar. 30, 2007) (Copenhaver, J.); and
Link Tele-communications, 119 F.Supp.2d at
544 (Harvey, J.). Other courts have adopted
a bright-line test and rejected the notion
that a defendant should have to scrutinize a
case to determine removability where the
initial
pleading
is
indeterminate.
See
Dugdale v. Nationwide Mutual Fire Insurance
Co., No. 4:05CV138, 2006 WL 335628, at *6
(E.D.Va. Feb. 14, 2006).
Courts adopting the “clue” test have
relied heavily on the analysis in Kaneshiro
v. North American Company for Life and
Health Insurance, 496 F.Supp. 452, 460
(D.Haw. 1980), where the district court
4
looked “beyond the pleadings” to determine
when the thirty-day clock for timely removal
begins: “[T]here appears to be a line of
support
for
placing
on
the
defendant
desiring removal the burden of scrutinizing
the plaintiff’s initial pleading, even if it
is indeterminate on its face, and of
removing within 30 days, at least unless the
initial pleading provides ‘no clue’ that the
case is actually removable.” Id. (emphasis
added). From this perspective, “even if the
other paper is ‘vague,’ as long as it
provides at least some ‘clue’ that federal
claims are asserted, the thirty day time
period for removal begins to run.” Stenger,
2011 WL 2550850, at *2.
In Dugdale, on the other hand, the
court required that the grounds for removal
be apparent within the four corners of the
initial
pleading
or
subsequent
paper.
However, a defendant could not ignore other
objective information establishing a federal
claim that it had received in conjunction
with the lawsuit. Dugdale, 2006 WL 335628 at
*5.
The Fourth Circuit has never adopted
Kaneshiro’s “clue” test. Moreover, the Court
of Appeals for the Ninth Circuit expressly
rejected it in Harris v. Bankers Life and
Casualty Co., 425 F.3d 689, 698 (9th Cir.
2005), observing that “in the twenty-five
years
since
Kaneshiro
was
decided,
no
federal
circuit
court
of
appeals
has
embraced its rationale.” Id. Furthermore,
since
“notice
of
removability
under
§
1446(b) is determined through examination of
the
four
corners
of
the
applicable
pleadings, not through subjective knowledge
or a duty to make further inquiry,” Harris
concluded
that
its
interpretation
was
consistent with the test articulated by the
Fourth Circuit in Lovern. Harris, 425 F.3d
at 694. Thus, at least in the view of the
Ninth Circuit, the “clue” test and its
subjective inquiry regarding “who knew what
when,”
is
incompatible
with
Lovern’s
5
objective standard. Id.; Lovern, 121 F.3d at
162.
A bright-line test is consistent with
the canon of case law that instructs courts
to construe removal statutes narrowly in
favor of remand, see Mulcahey, 29 F.3d at
151 (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941)), and also
guards against premature and protective
removals.
Furthermore,
it
ensures
that
removal
only
occurs
once
the
facts
supporting removal are evident, thereby
minimizing the potential for a “cottage
industry of removal litigation.” Harris, 425
F.3d at 698.
Dijkstra v. Carenbauer, No. 5:11CV152, 2012 WL 1533485, at *3-5
(N.D.W.Va. May 1, 2012).
Application of the proper “bright-line” analysis in this
case reveals that Defendants removed in a timely fashion.
The
exact nature of the claim could not be ascertained from the face
of the state court complaint, either initially or as amended.
In
order
to
state
an
ERISA
claim,
there
must
be
an
ERISA
governed plan, a plaintiff with standing to sue under that plan,
suit against an ERISA entity, and a complaint seeking relief
available under ERISA.
The complaint here is not brought by a
plan
rather
participant,
but
assignment is not pled.
by
an
assignee,
although
the
The removal notice states that it could
not be ascertained, from the complaint, what plan was involved
in the claim, and that there might have been more than one
potentially
applicable
plans,
including
6
one
not
governed
by
ERISA.
(ECF No. 1 ¶ 14).
arises
under
an
ERISA
Not every insurance coverage dispute
covered
plan
and,
without
precise
information as to the identity of the beneficiary and the plan,
a defendant cannot know that ERISA complete preemption might
apply.
The fact that Plaintiff was bringing suit under and
ERISA-governed
plan
was
“obscured”
or
“omitted”
from
the
complaint and was not apparent from the four corners of the
pleading.
Plaintiff argues that Cigna was derelict in not making an
adequate investigation of its own more promptly.
It was not
required
in
to
do
so.
This
case
is
unlike
those
which
a
defendant has knowledge of the facts without the help of the
plaintiff, such as its own state of citizenship for diversity
purposes.
See, e.g. Dang v. Target Corp., No. TDC-14-2215, 2014
WL 6705375 (D.Md. Nov. 25, 2014).
While ultimately Cigna can
consult its own records for some relevant information, it cannot
do so without at least some information from Plaintiff as to the
identity of its assignor and the policy.
information
that
made
the
timely removed the action.
grounds
for
When Cigna received
removal
(ECF No. 1 ¶ 14).
Plaintiff’s motion for remand will be denied.
7
apparent,
it
Accordingly,
B.
Motion to Dismiss
Defendants
duplicative
of
move
a
to
dismiss
counterclaim
in
this
action
the
because the claim is preempted by ERISA.
because
consolidated
it
suit
is
and
Plaintiff argues that,
if not remanded, the action should be consolidated with the
consolidated
consolidated
suit.
suit
Consolidating
serves
consistency, and comity.
the
goals
this
of
action
judicial
with
efficiency,
The undersigned has consolidated more
than fifty similar actions into the consolidated suit.
2376, ECF No. 40).
the
(DKC 14-
Defendants have not shown why this action
should be treated any differently than the multitude of removed
actions in the consolidated suit.
The considerations that lead
the court to consolidate the previous actions remain the same,
including a strong desire not to resolve these suits piecemeal.
Accordingly, Defendants’ motion to dismiss will be denied, and
the court will consolidate this action with the consolidated
suit.
Because the similar actions in the consolidated suit have
been dismissed pursuant to a joint stipulation of dismissal (DKC
14-2376, ECF Nos. 120; 121), the parties will be directed to
inform the court within seven (7) days if this action, once
consolidated, should similarly be dismissed.
8
III. Conclusion
For the foregoing reasons, both motions will be denied.
The clerk will be directed to consolidate this action with Conn.
General
Life
Ins.
Co.,
et
al.
v
Advanced
Surgery
Center
of
Bethesda, LLC, et al., Civil Action No. DKC 14-2376.
Accordingly, it is this 30th day of December, 2015, by the
United
States
District
Court
for
the
District
of
Maryland,
ORDEERED that;
1.
Plaintiff’s motion for remand (ECF No. 20) BE, and the
same hereby IS, DENIED;
2.
Defendant’s motion to dismiss (ECF No. 16) BE, and the
same hereby IS, DENIED;
3.
This case is consolidated for all purposes under Civil
Action No. DKC 14-2376;
4.
The parties are directed to inform the court within
seven (7) days if the complaint, once consolidated, should
be
dismissed
pursuant
to
the
joint
stipulation
for
dismissal and related order in the consolidated suit; and
5.
The
clerk
is
directed
to
transmit
copies
of
this
Memorandum Opinion and Order to counsel for the parties and
CLOSE this case.
/s/___
DEBORAH K. CHASANOW
United States District Judge
9
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