Advanced Surgery Ctr. v. Conn. Gen. Life Ins. Co., Civil Action No. 12-2715 (JLL)
| Decision Date | 31 July 2012 |
| Docket Number | Civil Action No. 12-2715 (JLL) |
| Parties | ADVANCED SURGERY CENTER, Plaintiff, v. CONNECTICUT GENERAL LIFE, INSURANCE COMPANY, ET AL., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court on the plaintiffs' motion for remand to the Superior Court of New Jersey, Law Division, Civil Part, Passaic County. The Honorable Jose L. Linares referred the matter to the Undersigned for Report and Recommendation. Pursuant to Fed. R. Civ. P. 78, the Court did not hold oral argument. For the reasons set forth below, the Undersigned respectfully recommends that the plaintiff's motion be denied.
Plaintiff Advanced Surgery Center provides ambulatory surgical services and is located in Clifton, New Jersey. (Compl. (attached to Notice of Removal) ¶¶ 2, 9, Jan. 12, 2012, ECF No. 1-2). Defendant Connecticut General Life Insurance Company is a national health insurance carrier doing business in New Jersey and located in Bloomfield, Connecticut. (Id. ¶ 3.) Defendant CIGNA Healthcare of New Jersey, Inc., is a health insurance carrier in Jersey City,New Jersey. (Id. ¶ 4.) Advanced Surgery Center has allegedly provided necessary surgery to patients with health benefits plans or policies that are provided or administered by the defendants. (Id. ¶¶ 1, 8.) According to the Complaint, the defendants have wrongfully denied payment on the plaintiffs' claims and reimbursement to Advanced Surgery Center because it is not a proper type of provider. (Id. ¶¶ 1, 8, 10) The patients have assigned their denied claims to Advanced Surgery Center. (Id. ¶¶ 1, 8-9.)
In an "unrelated matter," on December 9, 2011, a claims resolution manager employed by the defendants emailed a paralegal of the counsel for Advanced Surgery Center. (Pl.'s Br. 3, 5, Ex. D, June 1, 2012, ECF No. 9.) The claims resolution manger stated, in pertinent part, that (Pl.'s Br. Ex. D.)
In present matter, on January 17, 2012, Advanced Surgery Center filed the Complaint in the Superior Court of New Jersey, Law Division, Civil Part, Passaic County, against Connecticut General Life Insurance Company and CIGNA Healthcare of New Jersey. (Notice of Removal Ex. F, May 7, 2012, ECF No. 1-7.)
On February 2, 2012, Advanced Surgery Center personally served the managing agent of CIGNA Healthcare of New Jersey at its office in Jersey City, New Jersey. (Notice of Removal ¶ 3, May 7, 2012, ECF No. 1.) On the same day, Advanced Surgery Center personally served an employee of Connecticut General Life Insurance Company at its office in Bloomfield, Connecticut, namely, Donna Gaudet, the Incoming Legal Coordinator. (Notice of Removal ¶ 3,Ex. B; Pl.'s Br. Ex. C.)
On March 27, 2012, a series of emails crossed between a paralegal for counsel for Advanced Surgery Center and a claims resolution manager for defendants. The paralegal advised the claims resolution manager that the time to answer had expired and attached the February 2, 2012 proof of service and the Complaint. (Pl.'s Br. Ex. E.) The claims resolution manager responded that she had forwarded the email to the defendants' in-house counsel and stated: (Id.) In a later email that same day, the claims resolution manager apologized for the "internal mix-up with this lawsuit" and stated, "[w]e have someone looking at this right away, can we please have a 15 day extension?" (Pl.'s Br. Ex. F.)
On March 29, 2012, an attorney for Advanced Surgery Center emailed the defendants' counsel for the purpose of transmitting contact information and noted that the Complaint contained a notice to produce. (Pl.'s Br. Ex. G.) On March 30, 2012, the defendants' counsel emailed a response and wrote in pertinent part:
Per our conversation, please see the attached stipulation to extend time to answer or otherwise respond. If it meets your approval, please sign and send it back to me. I will file it with the court along with our response. Also per our conversation, I note that the agreed upon extension is not meant for removal purposes; the time to remove has expired in any event.
(Id.) On April 5, 2012, a paralegal for Advanced Surgery Center forwarded to defendants' counsel a signed stipulation extending time to answer, move, or otherwise respond to the Complaint until May 7, 2012. (Pl.'s Br. Ex. H.) In pertinent part, the stipulation stated: "The parties acknowledge this Stipulation in no way extends Defendants' time to remove this action to federal court." (Id.) The stipulation was signed only by counsel for Advanced Surgery Center.
(Id.) The stipulation was never filed.
On May 7, 2012, the defendants removed this action to the United States District Court, District of New Jersey. The defendants ground their removal in federal question jurisdiction under ERISA or, alternatively, in diversity jurisdiction along with assertions that CIGNA Healthcare of New Jersey was fraudulently joined. (Notice of Removal ¶¶ 10-26.) The defendants stated in their notice of removal that Connecticut General Life Insurance Company was never properly served and therefore its thirty-day opportunity for removal had never begun. (Id. ¶ 37.)
Later on May 7, 2012, the defendants applied for a Clerk's extension of time to answer, move, or otherwise respond to the Complaint. (Appl. & Proposed Order, May 7, 2012, ECF No. 3.) The extension request asserted that the defendants' time to answer had not expired and that they had not waived any defenses. (Id.) The Clerk of the Court granted the extension. (Clerk's Text Order, May 9, 2012.)
On May 29, 2012, the defendants moved to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss, May 29, 2012, ECF No. 6.)
On June 1, 2012, Advanced Surgery Center filed the present motion to remand this action to the Superior Court of New Jersey, Civil Part, Law Division, Passaic County. (Mot. to Remand, June 1, 2012, ECF No. 9.) On July 2, 2012, the defendants filed their opposition to the motion. (Opp'n Br., July 2, 2012, ECF No. 14.) On July 9, 2012, Advanced Surgery Center filed its reply. (Reply Br., July 9, 2012, ECF No. 15.) On July 16, 2012, the defendants filed a letter requesting leave to file a sur-reply, contending that Advanced Surgery Center has raised anew legal argument for the first time in its reply. (Defs.' Letter, July, 16, 2012, ECF No. 17.)1 On July 17, 2012, Advanced Surgery Center filed a letter opposing the request for a sur-reply and asking for permission to file a sur-sur-reply if the request is granted. (Pl.'s Letter, July 17, 2012, ECF No. 19.) On July 18, 2012, the Court granted permission to file the sur-reply and permitted Advanced Surgery Center to file a sur-sur-reply. (Text Order, July 18, 2012, ECF No. 20.) On July 24, 2012, Advanced Surgery Center filed its sur-sur-reply. (Pl.'s Letter, July 24, 2012, ECF No. 23.)
As an initial matter, the Court notes that a decision to remand is dispositive. In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998) () Accordingly, the Undersigned makes the following report and recommendation to the assigned United States District Judge, the Honorable Jose L. Linares.
Title 28, Section 1441(a) of the United States Code permits a defendant to remove a civil action in state court to a federal court where the action could have been filed originally, that is, where the federal court has subject matter jurisdiction over the action. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Section 1446 outlines the procedures for removal, and Section 1447 outlines the procedures following removal. 28 U.S.C. §§ 1446, 1447. Defects in removal may be procedural or jurisdictional. Under 28 U.S.C. § 1446(b)(1), a defendant has thirty days to remove a case, and this time limit "is a procedural provision, not a jurisdictional one." Farina v. Nokia Inc., 625 F.3d 97, 114 (3d Cir. 2010) (citing Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 614 (3d Cir. 2003)). In turn, a plaintiff's "motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). Jurisdictional defects, however, may be raised at any time. Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996).
Defendants bear the burden of demonstrating that removal was proper as they are the parties asserting federal jurisdiction. Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.2007); see also Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009) (describing burden as "heavy"). The removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)).
Here, the fundamental issue is whether there was a procedural defect in the notice of removal, namely, whether the defendants' notice of removal was timely.
Title 28, Section 1446(b)(1) of the United States Code states that "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . ." 28 U.S.C. § 1446(b)(1)....
To continue reading
Request your trial