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.
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.
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.
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.
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:
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.
Here, there was insufficient evidence on the face of the Complaints to trigger the 30-day deadline for removal under § 1446(b)(1). The only uniquely identifying information contained therein was the last four digits of each patient's United identification number. Although Bethesda Surgery contends that this information, along with the amount of its claim and the date of the service provided, should alone be sufficient to trigger the 30-day deadline, this same argument was recently rejected in a similar case in this district. In Surgcenter of Western Maryland, LLC v. Cigna Health & Life Insurance Co., Judge Chasanow explained:
Bethesda Surgery argues, however, that pre-litigation correspondence between Friedman and Gimble—in which Friedman identified each patient by name, and included their United identification number and the EOBs for each claim—constitutes "other paper" from which the basis of removal could have been ascertained.
The language in § 1446(b)(3). which requires that removal occur within 30 days of a defendant's receipt of, inter alia, "other paper" from which it may be ascertained that the case is removable, has been interpreted by the Fourth Circuit to include "any information received by the defendant, whether communicated in a formal or informal manner." Yarnevic v. Brink's. Inc., 102 F.3d 753, 755 (4th Cir. 1996) (internal quotation marks and citation omitted). Thus, the term "other paper" can include, for example, "requests for admissions, deposition testimony. settlement offers, answers to interrogatories, briefs, and product identification documents given in discovery." Tolley v. Momenta Co., 591 F.Supp.2d 837, 845 (S.D.W. Va. 2008).
Nonetheless. Bethesda Surgery's argument is unpersuasive. First, the statutory language of § 1446(b)(3) makes plain that the meaning of the term "other paper" in that provision refers to documents exchanged after the case has been initiated The United States Court of Appeals for the Fifth Circuit explained as much in Chapman v. Powermatic, Inc.:
969 F.2d 160, 164 (5th Cir. 1992) (footnote omitted): see also Carvalho v. Equifax info. Sews., LLC, 629 F.3d 876, 886 (9th Cir. 2010) (concluding that "any document received prior to receipt of the initial pleading cannot trigger the second thirty-day removal period" under § 1446(b)(3)). This Court agrees with Chapman's analysis of the relevant statutory language, as have multiple others. See, e.g., Lambertson v. Go Fit, LLC, 918 F.Supp.2d 1283, 1286 (S.D. Fla. 2013); Boeck v. Pac. Cycle, Inc., No. 10-CV-667A, 2011 WL 98493, at *2 (W.D.N.Y. Jan. 12, 2011); Svoboda v. Deutsche Bank Sec. Inc., No. C-10-01788 JCS, 2010 WL 3077101, at *4 (N.D. Cal. Aug. 6, 2010).
Moreover, in support of its decision in Lovern, the Fourth Circuit cited Chapman as consistent with the objective test that it adopted for determining whether a case is removable. Lovern, 121 F.3d at 162. Indeed, in describing the relevant test, the Fourth Circuit explained that, to determine whether a case is removable, a court must look to the "four corners of the initial pleading or subsequent paper." Id. (emphasis added). This Court assumes that the Fourth Circuit meant what it said when it used the term "subsequent" to describe what documents might provide the relevant information necessary to determine whether a case is removable.
Bethesda Surgery points to Dugdale v. Nationwide Mutual Fire Insurance Co., No. CIV.A. 4:05CV138, 2006 WL 335628 (E.D. Va. Feb. 14, 2006) to support its position that information exchanged between the parties before a lawsuit is filed may constitute "other paper" triggering a 30-day removal period under § 1446(b)(3) upon the filing of the initial pleading. In that case, the plaintiff sought to recover against Nationwide Mutual Fire Insurance Company ("Nationwide") for bad faith claims handling pursuant to a flood insurance policy. Those claims, however, were preempted by federal law because the policy was issued pursuant to the National Flood Insurance Program ("NFJP")—a federal program administered by the Federal Emergency Management Agency ("FEMA"). Id. at * 1-4. Before filing suit, the plaintiff had sent Nationwide a demand letter containing the information necessary for Nationwide to discover that the policy at issue was one that was issued pursuant to the NFIP. Id. at *6. The Dugdale court concluded that the demand letter was an "other paper" pursuant to § 1446(b)(3) which put Nationwide on notice that the plaintiff was asserting claims that were preempted by federal law and the court "simply [would] not allow Nationwide to ignore pertinent evidence in its possession or the legal impact of such." Id. at *7 The court noted that, because the relevant tacts, namely, the plaintiff's policy and claim numbers, were in Nationwide's possession before the lawsuit was commenced, there was no need for a "`mini-trial' or inquiry into `who knew what and when.'" Id. at * 6 (quoting Lovern, 121 F.3d at 162).
It is far from clear, however, that the reasoning of Dugdale would apply in a case where, rather than send a formal demand letter, counsel for Bethesda Surgery—who initially was in contact with United's employee in his role as general counsel for a different company—informally communicated with a non-attorney employee of United who is not responsible for reviewing such claims. See ECF No. 12-3 at ¶¶ 3-8; ECF No. 13-6 at ¶¶ 1-4. It seems unremarkable to note that, at some point, even if one employee of a defendant corporation may have notice of certain claims, that employee's notice may alone be insufficient to impute knowledge onto the entire entity. For instance, if Friedman had communicated with a salesperson for United, would that impute notice? What about an administrative assistant?
The bright-line rule announced in Lovern was adopted to avoid these sorts of fact-intensive inquiries. See Lovern, 121 F.3d at 162. Although a defendant cannot ignore information clearly within its own control—such as knowledge of its domicile—in cases such as this, the basis of removal must be apparent from the four-corners of the initial pleading or "an amended pleading, motion, order or other paper." § 1446(b)(3): see also Harvel v. Shadow Creek, LLC, No. 4:14-CV-01045-BCW, 2015 WL 181716, at *2 (W.D. Mo. Jan. 14, 2015) (noting that the United States Court of Appeals for the Eighth Circuit has adopted a bright-line rule "by not requiring courts to inquire into what a particular defendant may or may not subjectively know" at the time of tiling of the initial pleading and that this goal "would be eviscerated if this Court required Defendant to rely on Plaintiff's pre-suit demand letter to ascertain whether the case stated by a vague initial pleading is actually removable"). Here, the necessary information came on October 19, 2015 when Friedman provided Conception with the information necessary to identify the policies that applied to each patient. See ECF No. 13-5 at ¶ 8. United's removal on November 17, 2015 was therefore timely.
For the foregoing reasons Bethesda Surgery's Motions to Remand are
