Chaghervand v. Carefirst

• Decision Date: 21 August 1995
• Docket Number: MJG-93-3943.,Civ. A. No. MJG-93-1097
• Citation: 909 F. Supp. 304
• Parties: Constance CHAGHERVAND, Plaintiff, v. CAREFIRST, et al., Defendants. HEALTHCARE CORPORATION OF the MID-ATLANTIC, INC. t/a CareFirst, Plaintiff, v. Harry CHASE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

909 F. Supp. 304

Constance CHAGHERVAND, Plaintiff, v. CAREFIRST, et al., Defendants.

HEALTHCARE CORPORATION OF the MID-ATLANTIC, INC. t/a CareFirst, Plaintiff, v. Harry CHASE, et al., Defendants.

Civ. A. Nos. MJG-93-1097, MJG-93-3943.

United States District Court, D. Maryland, Northern Division.

August 21, 1995.

COPYRIGHT MATERIAL OMITTED

A. Gwynn Bowie, Jr., Douglas K. Schrader, Wharton, Levin, Ehrmantraut, Klein & Nash, P.A., Annapolis, MD, for Defendant Elias Gouel, M.D.

Alfred L. Scanlan, Scanlan & Rosen, Baltimore, MD, for Defendant Atlantic Phys. Assoc., P.A. & Defendant David Boersma, M.D.

Daniel E. Schultz, Washington, DC, Steven M. Wishnow, David M. Kanter, Kanter & Wishnow, Chartered, Washington, DC, for Patricia and Nelson Whitcomb.

Barbara McC. Stanley, E. Dale Adkins, Anderson, Coe & King, Baltimore, MD, for Defendant Potomac Physicians, P.A.

Kurt D. Karsten, Cowdrey, Thompson & Karsten, P.A., Annapolis, MD, for Anne Arundel Diagnostics, Inc.; AA Health Care Services, Inc.

Mark D. Gately, Susan C. Durbin, Miles & Stockbridge, Baltimore, MD, for Defendant Kerry R. Thompson, M.D.

David E. Manoogian, Epstein, Becker & Green, P.C., Washington, DC, for Plaintiff CareFirst.

Carmen M. Shepard, Assistant Attorney General, Baltimore, MD, and Elizabeth M. Kameen, Assistant Attorney General, Department of Health & Mental Hygiene, Baltimore, MD, for Defendants Harry Chase, Benjamin M. Adler, Karl Wehr.

Louis G. Close, III, Philip C. Federico, Shochor, Federico & Staton, Baltimore, MD, for Defendant Carolyn Page.

William B. Whiteford, Whiteford, Taylor & Preston, Towson, MD, for Defendants Kerry R. Heemann, M.D.; Osler Dr. Emer. Phys.

Lynne B. Malone, E. Dale Adkins, Anderson, Coe & King, Baltimore, MD, for Defendant Kwasi Poku, M.D.

John R. Penhallegon, Smith, Somerville & Case, Baltimore, MD, for Defendant St. Jos. Hosp., Inc.

Thomas C. Cardaro, Philip D. Ziperman, Klores & Cardaro, P.C., Washington, DC, for Defendant Constance Chaghervand.

Michael J. Baxter, Jessica S. Schaffer, Smith, Somerville & Case, Baltimore, MD, for Defendant John Posey, M.D.

GARBIS, District Judge.

The Court has before it two related cases: Chaghervand v. CareFirst, et al., MJG-93-1097, and CareFirst v. Harry Chase, et al., MJG-93-3943. In Chaghervand, the following motions are pending:

1. Plaintiff's Motion to Remand

2. Plaintiff's Motion for Leave to file Amended Complaint

3. Plaintiff's Motion for Leave to File Second Amended Complaint.

In Chase, the following motions are pending:

1. Defendant Page's Motion to Dismiss or For Summary Judgment

2. Defendant Chaghervand's Motion to Dismiss Amended Complaint for Declaratory Judgment

3. Plaintiff's Motion for Leave to Amend Complaint for Declaratory Judgment and Motion to File Second Amended Complaint for Declaratory Judgment

4. Defendant Page's Motion to Dismiss Second Amended Complaint for Declaratory Judgment

5. Plaintiff's Motion for Judgment on the Pleadings

6. Motion to Dismiss of Defendant Chase 7. Defendant Anne Arundel Diagnostics, Inc.'s Motion To Dismiss Or Alternatively For Summary Judgment

8. Defendants Nelson And Patricia Whitcomb's Motion To Dismiss Or Alternatively For Summary Judgment.

The Court has considered the legal memoranda submitted by the parties and finds a hearing unnecessary to resolve the motions.

For the reasons that follow, the Court grants Plaintiff's Motion to Remand in Chaghervand v. CareFirst, et al., and grants Page, Chaghervand, and Chase's Motions to Dismiss in CareFirst v. Harry Chase, et al. The remaining motions are denied as moot.

I. PROCEDURAL BACKGROUND

Mid-Atlantic Health Care Systems, Inc. (t/a CareFirst) and Healthcare Corporation of the Mid-Atlantic, Inc. (t/a CareFirst) (collectively referred to as "CareFirst") operate as a health maintenance organization (an "HMO"). As an HMO, CareFirst contracts with employers and employee organizations to provide health services to individuals pursuant to employee benefit plans. CareFirst also contracts with individual physicians and facilities to provide those health care services to its members.

Constance Chaghervand ("Chaghervand") was a member of CareFirst through an employee welfare benefit plan provided through her employer. On February 3, 1993, Chaghervand filed an action before the Maryland Health Claims Arbitration Office ("HCAO")¹ against CareFirst, David Boersma, M.D., and John Posey, M.D., alleging that CareFirst and the individually named physicians negligently failed to timely diagnose and treat her back condition, thereby causing her to sustain permanent neurological damage. Chaghervand alleged that CareFirst was both directly liable for its own negligence, and vicariously liable for the negligence of the individually named physicians.

CareFirst removed Chaghervand's case on the ground that the federal district court had exclusive subject matter jurisdiction over the proceeding because Chaghervand's claims against CareFirst were preempted by The Employee Retirement and Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. ("ERISA"). Chaghervand has filed a Motion to Remand the proceeding back to the HCAO, asserting that the HCAO has exclusive jurisdiction over a state law claim for medical negligence.²

In two cases other than Chaghervand's, the plaintiffs had similarly alleged that CareFirst was vicariously liable for damages suffered as a result of its participating health care providers' negligence. See Carolyn Page, et al. v. Kerry R. Heemans, Civil No. L-93-372; Patricia Ann Whitcomb, et al. v. Potomac Physicians, P.A., et al. Civil No. JFM-93-1098. CareFirst attempted to remove these cases to federal court on the ground that the plaintiffs' claims were preempted by ERISA. Both cases were subsequently remanded to the HCAO by Judges Legg and Motz of this Court.

In Page, Judge Legg ruled that CareFirst was not an employee welfare benefit plan under ERISA, and that even if it was, the state tort claims brought against it did not "relate to" an ERISA plan and thus were not preempted. See L-93-372 September 30, 1993 Unpublished Opinion, 1993 WL 818743. In Whitcomb, Judge Motz held that removal was procedurally improper because all of the named defendants had not consented to removal and, based on this holding, found it unnecessary to resolve the preemption issues. See Whitcomb v. Potomac Physicians, P.A., 832 F.Supp. 1011 (D.Md.1993).

On December 31, 1993, CareFirst filed a Complaint for Declaratory Judgment as to whether a claim of medical malpractice against an HMO arises under and is preempted by ERISA. See CareFirst v. Harry Chase, et al., MJG-03-3942. In the Complaint, CareFirst alleged (1) that Page, Whitcomb, and Chaghervand were each provided medical benefits by CareFirst pursuant to a qualified employee welfare benefit program established or maintained by their respective employers as defined by 29 U.S.C. § 1002(1); (2) that the employee welfare benefit plans through which CareFirst provided medical benefits to Page, Whitcomb, and Chaghervand were governed by ERISA; and (3) that the statutory provisions of ERISA superseded and federally preempted the state medical malpractice claims asserted by Page, Whitcomb, and Chaghervand. CareFirst further moved to stay the Chaghervand case pending the resolution of its Declaratory Judgment action. On January 26, 1994, CareFirst's Motion to Stay was granted.

As "parties in interest," Page, Chaghervand, and Harry Chase, Executive Director of the Maryland Health Claims Arbitration Office, have each filed a motion to dismiss CareFirst's declaratory judgment action.

II. DISCUSSION

A. Motion to Remand Chaghervand v. CareFirst, et al

Removal of Chaghervand to this Court was both procedurally and substantively improper. Therefore, Chaghervand's Motion to Remand must be granted.³

1. Joinder

Removal was procedurally improper because CareFirst failed to join all co-defendants in its petition for removal. Pursuant to 28 U.S.C. § 1441(a),

Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Courts consistently have held that this provision requires all defendants, including those without the right to remove the case, to join the petition for removal. See Chicago, R.I. & P. Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir.1992); Jackson v. Roseman, 878 F.Supp. 820, 826-27 (D.Md. 1995); Whitcomb v. Potomac Physicians, P.A., 832 F.Supp. 1011, 1013 (D.Md.1993). See also 1A Moore's Federal Practice ¶ 0.1683.-2 p. 447 (2nd Ed.1974). This unanimity is required whether removal is based on diversity or the existence of a federal question. Bradford v. Harding, 284 F.2d 307, 309 (2nd Cir.1960).

CareFirst argues (1) that consent to removal is required only from defendants who have an independent right to remove; and (2) that unanimous consent is not needed because CareFirst may remove under 28 U.S.C. 1441(c) regarding "separate and independent claims."

As for the first argument, while certain lower courts have "refined" the unanimity of consent rule to require the consent of only those parties who would independently have the right to remove, see, e.g., Hill v. City of Boston, 706 F.Supp. 966, 968 (D.Mass.1989), the majority of courts, including this Court, have rejected that "refinement." See, e.g., Doe, 969 F.2d at 168; Whitcomb, 832 F.Supp. at 1013. By upholding the unanimity rule, courts can prevent one defendant from "imposing his or her choice of forum upon other unwilling defendants and an unwilling plaintiff." Doe, 969 F.2d at 168 (quoting Hess v. Great Atl. & Pac. Tea Co., 520 F.Supp. 373, 375 (N.D.Ill.1981)).

As for the second argument, the Court rejects the characterization of Chaghervand's claims...