McDonald-Lerner, M.D. et al v. Neurocare Associates, P.A. et al

Filing 128

MEMORANDUM OPINION AND ORDER; granting 118 Motion to Remand; directing that case is remanded to the Circuit Court of Maryland for Montgomery County. Signed by Judge Roger W Titus on 4/4/14. (c/m, 4/4/14 am2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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DIANE L. MCDONALD-LERNER,
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M.D., et al.
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v.
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NEUROCARE ASSOCIATES, P.A., et al. *
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Case No. RWT 14-cv-0942

MEMORANDUM OPINION AND ORDER
On March 26, 2014, Defendants Medtronic, Inc. and Medtronic Sofamor Danek USA,
Inc. (“Medtronic Defendants”) removed this case from the Circuit Court for Montgomery
County, Maryland. ECF No. 1. On March 31, 2014, the Plaintiffs filed an Emergency Motion to
Remand (ECF No. 118), and pursuant to an Order expediting filing deadlines (ECF No. 121), on
April 3, 2014, the Defendants filed a response in opposition thereto. ECF No. 125.
If a case is not initially removable, defendants may generally remove a case within thirty
days of the date when it “may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). However, a case may not be removed based on diversity
jurisdiction under 28 U.S.C. § 1332 “more than 1 year after commencement of the action, unless
the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from
removing the action.” 28 U.S.C. § 1446(c)(1).
Plaintiffs in this case are citizens and residents of the state of Maryland, as are
Defendants Neurocare Associates, P.A. and Michael K. Rosner, M.D. (“Maryland Defendants”).
The remaining Defendants are corporations incorporated in and with their principal places of
business in Minnesota and Tennessee respectively. ECF No. 1 at 9. In this case, the Plaintiffs

have expressed an intention to voluntarily dismiss the claims against the Maryland Defendants,
thereby creating diversity of citizenship between the remaining parties under 28 U.S.C. § 1332.1
The Medtronic Defendants allege that removal is appropriate because the matter in controversy
exceeds the sum or value of $75,000 and the case is between citizens of different states. Id.;
ECF No. 1.
The Plaintiffs’ Motion to Remand, however, notes that this case commenced on
February 25, 2013, and therefore, more than one year has passed since the commencement of the
action. Under 28 U.S.C. § 1446(c)(1), the Medtronic Defendants are barred from removing the
case unless the Court finds that the Plaintiffs acted in bad faith to prevent the Defendants from
removing the action.
The Defendants argue that the exception to the one-year limitation applies because the
Plaintiffs acted in bad faith. They argue that “Plaintiffs had no intention of pursuing claims
against [the Maryland Defendants] since May, 2013” when they learned that Defendant
Dr. Rosner was not covered by insurance and that they “improperly manipulated forum
jurisdiction, and acted in bad faith to prevent [remaining Defendants] from removing this action
within one year of its commencement….” ECF No. 125 at 1-2.
The Plaintiffs contend that they acted in good faith in making their decision, albeit not yet
implemented, to dismiss the Maryland Defendants at this stage in the litigation. Any delay in
doing so, they claim, was as a result of the Defendants’ own failure to cooperate in providing
discovery necessary to make the determination sooner. ECF No. 118 at 7.
Federal courts are reluctant to interrupt state proceedings especially ones such as this
with a long and complicated history, scheduled to go to trial in less than six weeks. The

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The Court notes that even though the parties are in agreement that these Defendants will be dismissed, the
Plaintiffs have not yet done so and therefore, removal to this Court based on diversity of citizenship would be
premature at this time.

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Defendants have failed to make a sufficient showing that the Plaintiffs acted in bad faith in
indicating their intention to dismiss the Maryland parties over one year after the commencement
of the action. In light of the policy behind 28 U.S.C. § 1446(c)(1) to limit the right of removal
after significant progress has been made in the state court, this Court will grant the Plaintiffs’
motion to remand.
Accordingly, it is, this 4th day of April, 2014, by the United States District Court for the
District of Maryland,
ORDERED, that the Emergency Motion to Remand (ECF No. 118) is GRANTED; and
it is further
ORDERED, that this matter is remanded to the Circuit Court of Maryland for
Montgomery County; and it is further
ORDERED, that the Clerk is directed to close this case, and to mail a certified copy of
this Order to the clerk of the Circuit Court of Maryland for Montgomery County.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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