685 F.Supp.2d 163 (D.Me. 2010), CV-09-656-B-W, Samaan v. St. Joseph Hosp.
|Citation:||685 F.Supp.2d 163|
|Opinion Judge:||JOHN A. WOODCOCK, JR., Chief Judge.|
|Party Name:||Anton K. SAMAAN, Plaintiff, v. ST. JOSEPH HOSPITAL, et al., Defendants.|
|Attorney:||John P. Flynn, III, Daniel G. Lilley Law Offices, P.A., Portland, ME, for Plaintiff. James F. Martemucci, L. John Topchik, Germani Martemucci Riggle & Hill, Portland, ME, for St. Joseph Hospital. Thomas V. Laprade, Lambert Coffin Haenn, Portland, ME, for Dr. David Kaplan.|
|Case Date:||February 18, 2010|
|Court:||United States District Courts, 1st Circuit, District of Maine|
ORDER ON PLAINTIFF'S MOTION TO REMAND OR REMOVE
The Court denies the Plaintiff's motion to remand to state court because the unanimity requirement has been met and it denies the Plaintiff's motion for transfer to Brooklyn, New York of a case he initiated in Bangor, Maine.
I. STATEMENT OF FACTS1
On January 14, 2006, Anton K. Samaan was returning to New York City from Egypt when he was struck ill. A flight attendant noticed that he appeared sick and at 11:30 A.M. a physician who was on board thought Mr. Samaan was showing signs of a stroke and recommended the flight be diverted to the nearest destination for emergency treatment. The plane landed in Bangor, Maine and Mr. Samaan reached the emergency department at St. Joseph Hospital at 12:40 P.M. The standard of care for treatment of an ischemic stroke calls for the administration of tissue plasminogen activator (t-Pa) within three hours of the onset of the stroke, but St. Joseph Hospital failed to administer the t-Pa at all and Mr. Samaan has endured severe deficits as a result of his ischemic stroke.
On December 16, 2009, Mr. Samaan filed a medical malpractice suit in the state of Maine Superior Court in Penobscot County, which is located in Bangor, against St. Joseph Hospital and David Kaplan, M.D., an emergency room physician. Compl. Attach. 1 (Docket # 1). On December 31, 2009, Dr. Kaplan filed a Notice of Removal, removing the case from state to federal court based on diversity of citizenship.2 Dr. Kaplan answered the Complaint on January 11, 2010; St. Joseph Hospital did
so on January 13, 2010. Def. David Kaplan, M.D.'s Ans. to Compl. (Docket # 5); Def. St. Joseph Hospital's Ans. to Pl.'s Compl. (Docket # 8).
On January 26, 2010, Mr. Samaan moved for an order remanding the case to Maine Superior Court or in the alternative to have the case transferred to the United States District Court for the Eastern District of New York on the basis of forum non conveniens. Pl.'s Mot. to Remand (Docket # 9) ( Pl.'s Mot. ). 3 On February 10, 2010, Dr. Kaplan and St. Joseph Hospital objected to Mr. Samaan's motion and on February 16, 2010, Mr. Samaan replied. David Kaplan, M.D.'s Objection to Pl.'s Mot. to Remand or for " Removal" to the Southern Dist. of N.Y. (Docket # 12) (Kaplan Obj.); Def. St. Joseph Hospital's Objection to Pl.'s Mot. to Remand or for Removal (Docket # 13) (Hospital Obj.); Pl.'s Reply.
A. Motion to Remand
1. The Parties' Positions
The basis of Mr. Samaan's motion to remand is the asserted failure of the defendants to comply with the so-called unanimity requirement. Pl.'s Mot. at 2-3. Noting that, although Dr. Kaplan consented to the removal, St. Joseph Hospital did not do so within the thirty day period required by 28 U.S.C. § 1446(b), Mr. Samaan says that the case must therefore be remanded to state court. Id.
Dr. Kaplan says that he removed the case only after consulting with the Hospital's counsel and obtaining its consent. Kaplan Obj. at 2. He contends that the Hospital consented to removal in a number of ways: 1) by filing an Answer within the thirty day period for objection and not objecting to the removal, 2) by opposing the motion to remand, and, 3) by agreeing to removal before Dr. Kaplan removed. Id. In its response, the Hospital's counsel confirms that before filing the Notice of Removal, Dr. Kaplan's counsel contacted him and obtained his consent to removal. Hospital Obj. at 1. Both Dr. Kaplan and the Hospital rely on the recent First Circuit case, Esposito v. Home Depot USA, Inc., 590 F.3d 72 (1st Cir.2009), to support their contention...
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