Opinion
CIVIL ACTION NO. 4:02-CV-853-Y
June 2, 2003
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING DEFENDANT'S MOTION TO COMPEL ARBITRATION
Pending before the Court are two motions: (1) defendant Creative Solutions in Healthcare at Granbury Clinic, LLC's Motion to Compel Arbitration [doc. # 9-1], filed November 6, 2002, and (2) plaintiff Kathleen Dawn Killion's Motion to Remand [doc. # 12-1], filed November 15. Having carefully considered the motions, responses, and replies, the Court concludes that the plaintiff's motion to remand should be GRANTED and the defendant's motion to compel should be DENIED.
I. RELEVANT BACKGROUND
On Thursday, May 23, 2001, the plaintiff, who was employed by defendant Creative Solutions in Health-Care at Granbury, LLC as a nursing assistant, felt her "back snap" while lifting a patient. The plaintiff claims that she did not fill out a written report because she did not think that the incident was serious. However, over the weekend, her back allegedly began to hurt. When she returned to work, she reported the injury to Cindy Rainwater, the L.V.N. unit manager. On May 29, 2001, she filled out a Facility Incident Report and left it in the facility administrator's box. However, on May 31, 2001, she was informed that she had filled out the wrong report. Consequently, with the help of Kathy Woolsey, the head nurse, she filled out a Facility Employee Incident Report.
After the plaintiff's back worsened, Rainwater arranged for the plaintiff to see a doctor, who referred the plaintiff to an orthopedic specialist. Eventually, on September 24, she had surgery on her back. "She incurred about $17,000 in medical bills, missed several months of work, has some permanent impairment, and defendant has paid nothing." (Pl.'s Mot. to Remand at 3.)
On September 25, the plaintiff filed a petition in state court against the defendant, alleging a claim for negligence. She served the defendant with a summons and copy of the complaint on November 9. In a letter to the plaintiff's counsel dated November 13, the defendant's counsel, Robert Wiegand, stated:
The undersigned and Godwin Gruber, P.C. represent the Defendant in the above-referenced lawsuit. Please be advised that Ms. Killion signed a Waiver and Arbitration Agreement on March 13, 2001 in which she irrevocably and unconditionally released and waived all her rights, claims and causes of action for negligence, negligence per se and gross negligence in exchange for eligibility under a defined benefit plan. Ms. Killion also agreed to arbitrate any claims against Defendant and any disputes with the Defendant.
(Pl.'s App. at 6.) The defendant filed its answer on November 26.
On December 26, the defendant filed a motion to compel arbitration. The defendant attached an agreement, signed by the plaintiff, that repeatedly referred to an "Occupational Injury Benefit Plan." (Pl.'s App. at 82-89.) The state court denied the motion. Subsequently, in preparing for trial, the parties exchanged requests for disclosures, interrogatories, and requests for production. According to the plaintiff, the defendant never produced a plan in response to any discovery requests. Furthermore, on August 14, 2002, the plaintiff's counsel faxed a letter to the defendant, requesting a copy of the "Occupational Injury Benefit Plan and Summary Plan Description." (Pl.'s App. at 17.) The plaintiff, also on August 14, "noticed the deposition of defendant's corporate representative to produce any plan, a summary plan description, . . . ., a summary of plan benefits, or if there was no plan, an explanation why plaintiff was told there would be a plan." (Pl.'s Mot. at 6; see Pl.'s App. at 18-20.) The defendant responded by filing a motion for a protective order. Ultimately, the state court ordered that the defendant appear and produce the documents on September 20.
In preparation for the hearing on the defendant's motion for protective order, the plaintiff subpoenaed two witnesses and requested them to bring a copy of the plan and summary plan description. (Pl.'s App. at 26-27.) The defendant filed a motion to quash the subpoenas. At the hearing on the motion to quash, plaintiff's counsel stated:
We have subpoenaed the summary plan description and the plan because in response to our requests for production they did not provide a summary plan description. They did not have and have not produced a copy of the plan.
So I want to know whether or not there is a plan that we should be suing under that would give my client medical benefits. She has $18,000 worth of medical bills. And if there is a plan, what is the plan? We don't have it. They didn't produce it.
(Pl.'s App. at 285 (emphasis added).) The Court granted the defendant's motion to quash and motion for protective order and then ordered the defendant to appear and produce the documents on September 20, 2002. (Pl.'s App. at 29.)
In a facsimile dated August 27, 2002, to the defendant's counsel, the plaintiff's attorney stated, "Would you please just tell me whether or not there is a plan, and send me a copy if there is. Why is this so hard?" (Pl.'s App. at 33.) Furthermore, on September 19, 2002, the plaintiff deposed five of the defendant's corporate representatives. After the deposition, the plaintiff, on September 23, 2002, filed a "Motion to Compel Answers to Deposition Questions and to Overrule Objections to Notice of Deposition." The defendant removed the cause to this Court on October 18.
These depositions were taken as a result of the plaintiff's sending a "Notice of Deposition of Corporate Employees and Corporate Representatives" to the defendant. Prior to the depositions, the defendant had objected to those portions of this notice that requested information on claimants, payments under a plan, beneficiaries, administration documents, and the corporate witness refused to produce the requested information as "not relevant and not reasonably calculated to lead to discovery of admissible evidence." (Pl.'s App. at 42-43, 67-70, 72-73.)
A hearing on the motion was set for November 14.
II. TIMELINESS OF DEFENDANT'S NOTICE OF REMOVAL
The plaintiff claims the case should be remanded because she is not asserting a claim under federal law. The plaintiff also alleges, in the alternative, that even assuming the defendant could establish the existence of a claim under the Employee Retirement Income Security Act ("ERISA"), which would completely preempt any state-law claims, the defendant cannot show that it timely removed the case to federal court. The plaintiff claims that the defendant has been aware of any alleged ERISA claim since, at the very latest, December 26, 2001, when the defendant filed its motion to compel arbitration in state court and attached a document that mentioned an "Occupational Injury Benefit Plan" eighteen times.
The defendant, on the other hand, argues that it did timely file its notice of removal. The defendant claims that the plaintiff's complaint did not trigger the thirty-day removal period because it failed to affirmatively reveal on its face a claim for relief arising under federal law. In addition, the defendant alleges that it did not become aware that the plaintiff was raising a federal ERISA claim in her lawsuit until September 19, 2002, when the plaintiff's attorney was deposing the defendant's corporate representative and attempted to question the representative in detail about the ERISA plan. The defendant claims that it timely removed the case on October 18, which was within the thirty-day period for removal.
The time constraints for removal are set forth in 28 U.S.C. § 1446(b), which states:
The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.28 U.S.C. § 1446(b) (2002) (emphasis added). With respect to triggering commencement of the removal period after the initial pleading is filed, the information supporting removal in the "other paper" must be "`unequivocally clear and certain" to start the time limit running. Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002). Discovery responses, formal or informal communications between attorneys, and statements made in court can be "other paper" that start the thirty-day removal period. See, e.g., Sfiles v. Barnes Group, Inc., No. 3:01-CV-2750-H, 2002 WL 1298734, *3 fn.4 (N.D. Tex. June 11, 2002); Hines v. AC and S, Inc., 128 F. Supp.2d 1003, 1006 (N.D. Tex. 2001); Polk v. Sentry Ins., 129 F. Supp.2d 975 (S.D. Miss. 2000); Leboeuf v. Texaco, 9 F. Supp.2d 661, 665 (E.D. La. 1998) (stating that interrogatory responses constitute "other paper" commencing thirty-day removal period); Hessler v. Armstrong World Indus., Inc., 684 F. Supp. 393, 394-95 (D.De. 1988) (utterances from counsel and statements made in court constituted "other paper").
Section 1332 pertains to jurisdiction based on diversity of citizenship. See 28 U.S.C. § 1332 (2002).
After reviewing the evidence and after assuming (without deciding) that the plaintiff has a viable federal ERISA claim, Court concludes that the defendant did not timely file its notice of removal. Although the plaintiff's complaint, on its face, does not raise an ERISA claim, there is clear evidence that the defendants had received "other paper" from which they could have ascertained that the case is one which became removable much earlier than September 19, 2002. After unsuccessfully attempting to obtain information on an alleged ERISA plan for months and indicating in state court that she would sue under the plan, if there was one, the plaintiff, on August 14, 2002, faxed a letter to the defendant requesting a copy of the "Occupational Injury Benefit Plan and Summary Plan Description" and "noticed the deposition of defendant's corporate representative to produce any plan, a summary plan description, . . . a summary of plan benefits, or if there was no plan, an explanation why plaintiff was told there would be a plan." The defendant, however, refused, as it had repeatedly in the past, to produce any evidence of an ERISA plan to the plaintiffs, and now wants the Court to believe that it was not aware that the plaintiff was alleging any ERISA claim until September 19, 2002. The defendant's argument is simply unbelievable in light of the evidence in the record that clearly indicates the plaintiff had been seeking information, through discovery and informal and formal communications, regarding an ERISA plans for many months because the plaintiff wanted to sue under such a plan if it existed. The defendant cannot claim, on the one hand, that it could not ascertain that the plaintiff was alleging an ERISA claim when, on the other hand, the defendant was the one withholding any information regarding the ERISA plan from the plaintiff. Consequently, the Court concludes that the defendant could have unequivocally ascertained that the plaintiff was alleging an ERISA claim by August 14, 2002, at the very latest. Because the defendant did not remove the cause until October 18, over 60 days later, the defendant's removal was untimely. The defendant's removal and subsequent filing of a second motion to compel arbitration after the first motion was denied by the state court appears to be an attempt by the defendant to manipulate the system to get a "second bite at the apple." The Court does not view the defendant's efforts favorably.
Based on the foregoing, it is ORDERED that the plaintiff's Motion to Remand [doc. #12-1] is GRANTED. The above-styled and numbered cause is REMANDED to the 355th Judicial District Court, Hood County, Texas, cause no. C2001-328.
It is further ORDERED that the defendant's Motion to Compel Arbitration is DENIED [doc. # 9-1].