Ramos v. Quien
| Citation | 631 F.Supp.2d 601 |
| Decision Date | 18 November 2008 |
| Docket Number | Civil Action No. 08-2952. |
| Parties | Bienvenido Quiles RAMOS, Plaintiff, v. Emanuel QUIEN, M.D., Sean Harbison, M.D., Temple University Health System, Temple University Hospital, Temple University Hospital, Episcopal Campus, Northeastern Hospital, Lawrence Solish, M.D., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Meyer A. Bushman, Abrahams, Lowenstein, Bushman, P.C., Kathleen M. Kramer, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, PA, for Defendants.
Luis P. Diaz, Philadelphia, PA, for Plaintiff.
MEMORANDUM RE: MOTION TO REMAND AND MOTIONS TO DISMISS
Plaintiff, Bienvenido Quiles Ramos, ("Plaintiff") instituted an action for damages for medical malpractice pursuant to Pennsylvania common law, and for failure to provide an interpreter under 42 U.S.C § 2000d, Title VI of the 1964 Civil Rights Act, in the Court of Common Pleas of Philadelphia County on November 1, 2007. Defendants ("Defendants") include: Emanuel Quien, M.D., Sean Harbison, M.D., Temple Physicians, Inc., Northeastern Hospital, Temple University Hospital, Temple University Hospital-Episcopal Campus and Temple University Health System (collectively "Temple University Hospital"); Lawrence Solish, M.D. ("Dr. Solish"); Lisette Cooper, M.D. ("Dr. Cooper"); and Lehigh Medical Associates ("Lehigh").
Pursuant to 28 U.S.C. § 1441(b), Temple University Hospital removed the case to this Court on June 24, 2008. (Doc. No. 1 at 2). Temple University Hospital and Dr. Solish filed separate motions to dismiss based on Plaintiff's untimely filing of the certificate of merit, as required by Pennsylvania law. (Doc Nos. 3, 6).
Plaintiff then moved to remand, arguing the removal was improper because all Defendants did not unanimously consent to removal by Temple University Hospital. (Doc. No. 4). Specifically, Plaintiff contends that: (1) Temple University Hospital never obtained Dr. Solish's consent to removal; and (2) that Temple University Hospital neither: (a) served Lehigh or Dr. Cooper with the notice of removal, nor (b) obtained Lehigh or Dr. Cooper's consent to the removal. (Doc. No. 4 at 2-3). Because Plaintiffs Motion to Remand was filed 31 days after removal, Temple University Hospital and Dr. Solish assert the case must remain in this Court. (Doc. Nos.29, 30).
1. Whether this Court should grant Plaintiff's Motion to Remand, despite the untimely filing of the Motion, because Defendants violated the unanimity rule in removal.
2. Whether this Court should grant Defendants' Motions to Dismiss because of Plaintiff's failure to timely file certificates of merit as required by Pennsylvania law.
On April 4, 2004, Plaintiff, who "speak[s] little or no English," was "admitted to Temple University Hospital for surgery." (Compl. at ¶¶ 3, 13). The Hospital recorded that Plaintiff indicated he "wishe[d] for communication" in English. (Id. at ¶ 15). It appears that plaintiff underwent surgery twice for inguinal (abdominal and pelvic) cancer April and May of 2004. (Id. at ¶¶ 16-20, 22-24). Plaintiff's condition worsened, and, on January 31, 2006, "a colonoscopy was performed which indicated ... [m]etastatic cancer." (Id. at ¶ 30). Doctors Solish and Harbison operated on Plaintiff twice in 2006 to treat the inguinal cancer. (Id. at ¶ 33-35, 37, 41-43).
On January 12, 2007, a CT scan performed on Plaintiff revealed "[e]xtensive bilateral inguinal adenopathy," and Plaintiff claims that "Dr. Solish expressed surprise at the results indicating to [Plaintiff] that his last operation only removed one half of the tumor." (Id. at ¶¶ 45, 67-68). Plaintiff contends that Dr. Solish "refused to return [Plaintiff] to the care of Dr. Harbison for corrective surgery but instead referred him to Dr. Michael J. Metro of Urologic Consultants of S.E. Pennsylvania and Albert Einstein Hospital with whom Dr. Metro is associated." (Id. at ¶ 69). On February 6, 2007, Dr. Metro performed surgery on Plaintiff and "has arrested all his cancerous growths." (Id. at ¶ 70-71).
The following is a summary of the case's complicated procedural history in both state and federal court:
· Nov. 1, 2007—Plaintiff commences action by Writ of Summons in the Court of Common Pleas of Philadelphia County. (Doc. No. 1, Ex. A at 4).
· May 15, 2008—Plaintiff files a Complaint in the Court of Common Pleas. The Court of Common Pleas denies Plaintiff's third request for an extension of time to file the Complaint. (Doc. No. 1, Ex. A at 12).
· May 27, 2008—Defendants receive Complaint. (Doc. No. 1 at 2)
· June 24, 2008—Defendants remove to this Court. (Doc. No. 1).
· July 8, 2008—The Court of Common Pleas reconsiders Plaintiff's Complaint and deems it timely filed as of May 15, 2008. The court gives Plaintiff a 45 day extension to file certificates of merit ("COM"). (Doc. No. 1, Ex. A at 12).
· July 24, 2008—Temple University Hospital files Motion to Dismiss medical malpractice claims under Fed.R.Civ.P. 41(b) in this Court, arguing that Plaintiff has not filed a COM within 60 days of filing the Complaint. (Doc. No. 3).
· July 25, 2008—Plaintiff files Motion to Remand, arguing that Temple University Hospital removed in violation of the rule of unanimity. (Doc. No. 4).
· July 31, 2008—Dr. Solish files Motion to Dismiss medical malpractice claims under Fed.R.Civ.P. 41(b) in this Court, arguing that Plaintiff has not filed a COM within 60 days of filing the Complaint. (Doc. No. 6).
· Aug. 14, 2008—Plaintiff answers Defendants' Motions to Dismiss, contending that the Court of Common Pleas gave a 45 day extension for filing of COMs. (Doc. No. 14).
· Aug. 22, 2008—Plaintiff files one COM for all Defendants (45 days from July 8). (Doc. No. 16).
· Aug. 27, 2008—Temple University Hospital files a Motion to Strike the COM, asserting the COM was untimely and that its form was improper because Plaintiff listed all the Defendants in one COM instead of filing a separate COM for each Defendant. (Doc. No. 17).
· Sept. 14, 2008—Plaintiff files one COM for each Defendant, which are identical in content to the Aug. 22 COM. (Doc. Nos. 19-28).
· Sept. 17, 2008—Temple University Hospital files another Motion to Strike the COM, which adds that the Sept. 14 COMs were untimely but is otherwise a duplicate of the Aug. 27 Motion to Strike the COM. (Doc. No. 31).
Plaintiff filed a Motion to Remand on July 25, 2008 seeking to remand the case back to the Court of Common Pleas of Philadelphia. (Doc. No. 4 at 1). More specifically, Plaintiff claims that Temple University Hospital's removal is not valid because Defendants Dr. Solish, Dr. Cooper and Lehigh did not join in or consent to the removal, which violates the "rule of unanimity," inferred from 28 U.S.C. § 1446. (Id. at 3). Plaintiff concedes that Temple University Hospital served Dr. Solish's counsel with the notice of removal but contends that Dr. Solish did not consent to it. (Id. at 2-3). Plaintiff contends that Dr. Cooper and Lehigh were neither served with the Notice of Removal nor consented to it. (Id.).
In its response to Plaintiff's Motion to Remand, Temple University Hospital argues that it was not obligated to seek Dr. Cooper or Lehigh's consent because Plaintiff never served either with the Complaint. (Doc. No. 12 at 6). Temple University Hospital alternatively contends that Dr. Solish's consent to removal can be inferred through his counsel's appearance and filing of a Motion to Dismiss in this Court on July 31, 2008. (Id.).
The parties submitted additional briefing at the Court's request regarding the timeliness of Plaintiff's Motion to Remand. Defendants Temple University Hospital and Dr. Solish contend that Plaintiff's Motion to Remand should be denied as untimely because it was filed more than thirty days after Temple University Hospital filed its notice of removal. (Doc. No. 29 at 2; Doc. No. 30 at 1). Plaintiff argues that the Motion to Remand is timely under either Fed.R.Civ.P. 6(d), which provides for a three day time extension when service commences the time period and service is effectuated through mail, or Fed. R.Civ.P. 6(b)(1)(B), which provides a time extension for failure to act within a time period due to "excusable neglect." (Doc. No. 32 at 2-3). Defendants respond that: (1) Fed.R.Civ.P. 6(d) only applies only when a party is required to act within a prescribed period after service, not after filing; and (2) Fed.R.Civ.P. 6(b)(1)(B) should not be applied due to Plaintiff's numerous requests for time extensions at every prior stage of litigation. (Doc. No. 34 at 4-5).
Temple University Hospital and Dr. Solish contend that Pennsylvania substantive law should govern the medical malpractice claims, which arise under Pennsylvania common law. (Doc. Nos. 3 at 8-9, 6 at 8). Defendants suggest that Pennsylvania Rule of Civil Procedure 1042.3, which mandates the filing of a COM within sixty days of a Complaint alleging medical malpractice, is substantive law that should govern in this case. (Doc. Nos. 3 at 9, 6 at 8). Defendants assert that because Plaintiff did not file a COM within sixty days of filing the Complaint on May 15, dismissal under Fed.R.Civ.P. 41(b) for failure to prosecute is appropriate. (Doc. Nos. 3 at 5, 6 at 8).
Plaintiff responds that: (1) the case should be remanded; and (2) the Court of Commons Pleas extended the sixty-day deadline for filing a COM on July 7, 2008, to August 22, 2008, based on Plaintiff's Motion for Extraordinary Relief, and Plaintiff filed a COM within that time. (Doc. No. 14 at 5-6).
This Court has jurisdiction over the federal claim removed from state court under 28 U.S.C. §§ 1331 and 1441(a). This Court has supplemental jurisdiction to entertain claims arising under state law pursuant to 28 U.S.C....
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