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Bethesda Chevy Chase Surgery Center, LLC v. Unitedhealthcare Insurance Co.

United States District Court, D. Maryland, Southern Division

May 27, 2016



          GEORGE J. HAZEL, District Judge.

         Plaintiff Bethesda Chevy Chase Surgery Center, LLC ("Bethesda Surgery") initiated these consolidated actions in the District Court of Maryland for Montgomery County, Maryland. Following removal to this Court by Defendant UnitedHealthcare Insurance Company ("United"), Bethesda Surgery filed motions to remand in each action. See ECF No. 12.[1] The Court consolidated the cases on May 20, 2016 because they involve common issues of law and fact. ECF No. 24; see also Fed.R.Civ.P. 42(a). No hearing is necessary to resolve the pending motions to remand. See Local Rule 105.6 (D. Md.). For the reasons that follow, Plaintiff's Motions are denied.

         I. BACKGROUND

         Each of these consolidated cases revolves around the same or similar facts. Bethesda Surgery is an outpatient surgery center located in Bethesda, Maryland. ECF No. 1 at ¶ 1. In each case, Bethesda Surgery alleged that on various dates, Bethesda Surgery staff performed a medically necessary surgery on a patient who is insured by United under a policy with out-of-network benefits. Bethesda Surgery alleges that it submitted claims to United in varying amounts and that United, in most cases, wholly denied coverage, and in other cases, woefully underpaid for the service. See ECF No. 2.[2] The only information identifying the patient in the various Complaints is the last four digits of the patient's United identification number, the date on which Bethesda Surgery performed the procedure, the amount of the varying claims, and the date United processed the claims, Id.

         Before filing these Complaints, counsel for Bethesda Surgery, Ian Friedman, contacted an individual at United, Anna Gimble, seeking informal resolution of these disputes and requesting that the claims be reprocessed. See ECF No. 12-3 at ¶¶ 4-5. Gimble is the Vice President of Network Management for United's "West Region, " and is in charge of network operations in Hawaii and Idaho and for relations with surgery centers that are part of United's network of providers throughout the West Region. ECF No. 13-6 at ¶¶ 1-2. Gimble is not an attorney, but she had been in contact with Friedman in his Capacity as general counsel for a different corporation regarding business dealings between their two companies. See id. at ¶¶ 3, 5; ECF No. 12-3 at ¶¶ 3, 5. In July 2015, Friedman asked Gimble if she could have someone at United review the claims at issue in this case to see if United was willing to reconsider payment on them. ECF No. 13-6 at ¶ 6: ECF No. 12-3 at ¶ 5. Gimble agreed to inquire into the matters, and. on July 10, 2015. Friedman provided Gimble with the Explanation of Benefits ("EOB") for each of the patients where Bethesda Surgery had not been paid or was underpaid. See ECF No. 12-4. The EOBs included, among other things, the patients' names, their full United identification numbers, the dates that Bethesda provided service, the service charges, and the United claim numbers. See id. Friedman asked Gimbie to inform him by July 17, 2015 whether she would be able to "do anything" with the cases. Id. at 2.[3]

         Despite some back and forth in communication between Friedman and Gimble regarding the claims and whether United would reprocess them, the claims continued unresolved through August 2015. See ECF No. 12-3 at ¶¶ 8-10. On September 21, 2015. Bethesda Surgery initiated these separate actions in state court.[4] See ECF No. 2. United was deemed to have been served with the respective Complaints on September 29, 2015, the date on which Plaintiffs served them on the Maryland Insurance Administration. See Md. Code Ann., Ins., § 8-407: see also ECF No. 1 at ¶ 2; ECF No. 3.

         Because none of the Complaints included the patients' full name or similar identifying information, on October 13, 2015, counsel for United, Rita F. Concepción, contacted Friedman asking that he provide her with each patients' name, United identification number, date of birth, and date of service, along with a copy of the EOBs. ECF No. 13-5 at ¶¶ 5-7. Friedman responded with the requested information on October 19, 2015. Id. at ¶ 8: see also ECF No. 13-5. On November 17, 2015, United removed each case to this Court on the grounds of federal question jurisdiction. In the Notices of Removal. United indicated that the information provided on October 19, 2015 allowed United for the first time to identify the patients' identities. In doing so, United determined that each patient was insured under an employee welfare benefit plan administered or insured by United and governed by the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. § 1001. et seq. ECF No. 1 at ¶ 9. Specifically, United indicated that any claim asserted by Bethesda Surgery for recovery under the terms of such benefit plans arising under state law has been completely preempted by ERISA, and that the cases were therefore properly removed under 28 U.S.C. §§ 1331 and 1441(a). Id. at ¶¶ 11-16.


         Bethesda Surgery does not dispute that these cases fall within the Court's original jurisdiction on the ground that any state law claims raised in the Complaints are completely preempted by ERISA. See ECF No. 12-1; see also Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 231-32 (4th Cir. 1993) (citing Metro, Life Ins. Co. v. Taylor. 481 U.S. 58, 62, 107 S.Ct. 1542 (1987)) (explaining that removal is proper for slate law actions preempted by ERISA). Rather, Bethesda Surgery contends that remand is necessary because United failed to timely remove these actions. ECF No. 12-1 at 4-7.

         Ordinarily, a notice of removal must 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). "[I]f the case stated by the initial pleading is not removable, " however, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." § 1446(b)(3).

         In analyzing these two separate provisions of § 1446, the United States Court of Appeals for the Fourth Circuit explained that:

[O]nly where an initial pleading reveals a ground for removal will the defendant be bound to tile a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the case "stated by the initial pleading" not removable, and the defendant will have 30 days from the revelation of grounds for removal in an amended pleading, motion, order, or other paper to file its notice of removal....

Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997). In Lovern, the Fourth Circuit rejected application of a subjective test for determining whether a case as "stated by the initial pleading" is one that is removable. In other words, the Fourth Circuit explained that it would "not require courts to inquire into the subjective knowledge of the defendant, an inquiry that could degenerate into a mini-trial regarding who knew what and when." Id. Rather, to determine whether a case is removable, a court must "rely on the face of the initial pleading and on the documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleading or subsequent paper." Id. (emphasis added). This bright-line tests helps to "guard[] against premature and protective removals, " and further "ensures that removal only occurs once the facts supporting removal are evident, thereby minimizing the potential for a cottage industry of removal litigation.'" Dijkstra v. Carenbauer, No. 5:11CV152, 2012 WL 1533485, at *5 (N.D. W.Va. May 1, 2012) (quoting Harris v. Bankers Life & Cos. Co., 425 F.3d 689, 698 (9th Cir. 2005)).

         Notwithstanding this objective test, other courts have noted that a defendant "must still apply a reasonable amount of intelligence in ascertaining removability." Cutrone v. Mortgage Elec. Registration Sys., Inc.,749 F.3d 137, 143 (2d Cir. 2014) (internal quotation marks and citations omitted). A defendant may not, for instance, claim ignorance of its own domicile if it seeks to remove a case on the basis of diversity jurisdiction. See, e.g., Mai Dang v. Target Corp., No. CIV.A. TDC-14-2215, 2014 WL 6705375. at *4 (D. Md. Nov. 26, 2014) (distinguishing Lovern and noting that "there was no possibility that Target did not know the situs of its principal place of business"). But a defendant is not obligated to conduct an investigation into the possibility of removability.[5]SeeCutrone, 749 F.3d at 143 ("[D]efendants have no independent duty to investigate whether a case is removable"); see also Graiser v. Visionworks of Am., Inc., No. 16-3167, ___ F.3d ___, 2016 WL 1359048, at *7 (6th Cir. ...

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