United States District Court, D. Maryland, Southern Division
J. HAZEL, District Judge.
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. 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.
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. 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,
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.
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. 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.
none of the Complaints included the patients' full name
or similar identifying information, on October 13, 2015,
counsel for United, Rita F. ConcepciÃ³n, 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.
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.
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." §
analyzing these two separate provisions of § 1446, the United
States Court of Appeals for the Fourth Circuit explained
[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
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)).
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.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. ...