Opinion
CIVIL ACTION NO: 01-585 c/w 03-2212, NO: 03-2213, SECTION: "J" (5)
November 20, 2003
ORDER AND REASONS
Before the Court are Plaintiff's Motions to Remand in CA 01-585 c/w 03-2212 and CA 03-2213. Defendants, United Healthcare of Louisiana, Inc. ("United") and Trover Solutions d/b/a Healthcare Recoveries Inc. ("HRI"), oppose the motions. These motions were set for hearing on Wednesday, October 1, 2003. Upon consideration of the briefs and evidence submitted by counsel, the record, and the applicable law, the Court finds that plaintiff's Motions to Remand should be GRANTED.
This Order Reasons addresses Motions to Remand both in cases 01-585 c/w 03-2212 and 03-2213 although 03-2213 has not been consolidated. The relationship between the two cases is as follows: the plaintiff in each lawsuit is the same; defendant Trover Solutions, Inc. d/b/a Healthcare Recoveries Inc., performs collection services for defendant United Healthcare of Louisiana. Plaintiff's causes of action under 03-2212 and 03-2213 originate from the same event. Moreover, United is the defendant in case 01-585 c/w 03-2212 and HRI is the defendant in case 03-2213.
BACKGROUND
In October 1999, Plaintiff, Kyle M. Hamilton, was seriously injured in a single-vehicle automobile accident in which he was a guest passenger. At the time of the accident, plaintiff was insured with United through a group health plan provided by his father's employer. As a result of the accident, United paid in excess of $100,000 for medical and other services. Plaintiff also received nearly $250,000 in uninsured/underinsured ("UM") motorist coverage benefits and $5,000 in MedPay benefits through his father's automobile policies with State Farm. Thereafter, HRI, a collection agency acting pursuant to its contract with United and attempting to enforce United's subrogation rights against any proceeds that plaintiff received from third parties, successfully collected $57,757.06 out of the $250,000 UM policy proceeds.
On January 19, 2001, plaintiff filed suit in Civil District Court for the Parish of Orleans against United (CA 01-585). Plaintiff sought to recover the monies paid to United through HRI and asked the court to enjoin any further attempts by United to either coordinate benefits or subrogate claims to any further proceeds under the State Farm policies. On March 6, 2001, United filed a notice of removal contending that plaintiff's state law claims were completely preempted by the Employee Retirement Income Security Act of 1974 ("ERISA").
Subsequently, on March 12, 2001, plaintiff filed a separate suit in federal court against HRI alleging that HRI's actions in connection with its recovery of funds from plaintiff violated 15 U.S.C. § 1692, Fair Debt Collection Practices Act ("FDCPA"), as well as La. R.S. 51:1401, Louisiana Unfair Trade Practices Act ("LUTPA") (CA 01-650). On May 17, 2001, this Court remanded the United lawsuit (CA 01-585) to Civil District Court for the Parish of Orleans. This Court held that plaintiff's claims did not meet the two step preemption analysis, which included both complete preemption and conflict preemption, as required in Copling v. Container Store, Inc., 174 F.3d 590 (5th Cir. 1999).
On March 19, 2001, case 01-585 was consolidated with 01-650.
In the HRI lawsuit (CA 01-650), on October 3, 2001, this Court entered judgment dismissing the plaintiff's state law claims without prejudice and dismissing plaintiff's claims under the Fair Debt Collection Practices Act ("FDCPA") with prejudice. The plaintiff appealed this Court's decision, and the Fifth Circuit reversed in part and remanded.Hamilton v. United Healthcare of Louisiana, 310 F.3d 385 (5th Cir. 2002). The Fifth Circuit reversed this Court's decision that the funds at issue did not qualify as "debt" under the FDCPA, but affirmed that diversity jurisdiction did not exist. Id. at 393. On May 22, 2003, this Court again rendered a judgment dismissing plaintiff's FDCPA claims. Specifically, this Court held that HRI was exempted from "debt collector" status under the FDCPA, and thus, the actions taken by HRI in relation to United's subrogation or reimbursement claims were not governed by the FDCPA. Moreover, this Court dismissed plaintiff's state law claims without prejudice.
In the meantime, plaintiff filed a suit against HRI in the Civil District Court for the Parish of Orleans regarding the state law claims. On July 10, 2003, in an unrelated case, the Fifth Circuit held that only complete preemption of a claim under ERISA § 502(a) is required for removal jurisdiction; conflict preemption under ERISA § 514 is not required. Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003). The Court expressly overruled Copling and other existing precedent to the contrary.Id. at n. 11. Based upon the decision in Arana, on August 5, 2003, United again filed a notice of removal (CA 03-2212). United argued that the Fifth Circuit's recent decision in Arana constituted "other paper" from which the defendant first ascertained that the case was re-removable. Moreover, on August 5, 2003, HRI also filed a notice of removal based upon the Arana decision (CA 03-2213). On September 4, 2003, Plaintiff filed motions to remand both cases back to state court.
On August 29, 2003, 03-2212 was consolidated with 01-585. However, it appears that the consolidation was done in error as case 01-585 was closed on March 14, 2003.
According to Rec. Doc. 48 in 01-585 c/w 01-650, this Court assumed arguendo that HRI, as a party contracting with United, would be entitled to "the protections" afforded by ERISA and commented that this would be a "dubious premise to say the least." Although a dubious premise, when considering the plaintiff's present motion to remand, this Court will again assume arguendo that ERISA will apply to HRI.
DISCUSSION
The Fifth Circuit recognizes a defendant's right to seek subsequent removals after remand. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996). As a general rule, once a case is remanded to state court, a defendant is precluded only from seeking a second removal on the same ground. Id. The prohibition against removal on the same ground does not concern the theory on which federal jurisdiction exists, but rather the pleading or event that made the case removable.Id. "A defendant who fails to remove on the initial pleading may file a second removal petition when subsequent pleadings or events reveal a new and different ground for removal. . . ." Id. at 493. Congress intended that a party be permitted successive removals as stated in 28 U.S.C. § 1446(b). Id. Section 1446(b) provides in relevant part:
If the case stated by the initial pleading is not removable, a petition for 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.28 U.S.C. § 1446(b) (West 2003).
In each case, defendants argue that Arana confers federal jurisdiction with regard to claims in the present cases. Defendants' arguments rest on the rationale that pursuant to Green v. Reynolds Tobacco Co., 274 F.3d 263 (5th Cir. 2001), the decision inArana constitutes "other papers" under 28 U.S.C. § 1446(b) thereby allowing the defendants to remove these cases at this time. Defendants further contend that because the Arana decision had not been rendered at the time plaintiff's suits against United and HRI were remanded in May 2001, it is a new event that satisfies the requirements of 28 U.S.C. § 1446(b) and makes the cases removable.
Plaintiff contends that while the legal and factual issues inArana may be similar to those in the present cases, the very narrow holding in Green indicates that the Arana decision does not constitute "orders or other papers" under 28 U.S.C. § 1446(b). In Green, the court, adopting the very limited parameters set forth in Doe v. American Red Cross, 14 F.3d 196 (3d Cir. 1993), held that a decision by a court in an unrelated case, but involving the same defendants, a similar factual situation, and the question of removal, can constitute an "order" under § 1446(b).Green, 274 F.3d at 268.
Green, however, is distinguishable from the present cases. The very narrow holding in Green clearly requires that the "unrelated case" involve a "similar factual situation" and the "same defendants." Green, 274 F.3d at 268 (emphasis added). Although the factual situation in Arana is similar to that in the present cases, the defendants in Arana and the defendants in the present cases are not the same. Nonetheless, defendants argue that this court should rely on Arana because plaintiff's counsel in the present cases was also Arana's counsel. However, this factor is irrelevant under Green. Thus, Arana does not constitute an "order or other papers" and does not provide a basis for re-removal pursuant to § 1446(b).
Attorney's Fees and Costs
Plaintiff contends that based on the defendants' "wrongful attempted removal" of these cases he is entitled to recover costs and attorney's fees, pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs any actual expenses, including attorney fees, incurred as a result of removal.
28 U.S.C. § 1447(c) (West 1994) (emphasis added).
In Miranti v. Lee, 3 F.3d 925, (5th Cir. 1993), the Fifth Circuit held that a court's discretion to award attorney's fees under § 1447(c) is triggered only if the court finds that the defendant's decision to remove was legally improper. Id. at 929. The propriety of the defendant's action in removing the case is central to the determination of whether fees are awarded. Id. at 928. The court should look only to "the complaint at the time the petition for removal was filed." Id. Thus, the issue is whether Defendants' decision to remove these actions was improper at the time of removal.
As previously discussed, defendants' removals were based on the Fifth Circuit's recent decision in Arana, which expressly overruled a case relied upon by this Court in its previous decision to remand. Defendants' assertion that Arana constituted "order or other paper" was based on the very narrow holding in Green. At the time of removal, however, defendants should have been aware that the present cases did not meet the necessary requirements set forth inGreen; neither United nor HRI were defendants in theArana lawsuit. However, considering the complexity of the issues and the fluctuation of the law during the course of these proceedings, the court finds no impropriety in the defendants' removal of the complaints as it appeared at the time of the removals.
Therefore;
IT IS ORDERED that CA 03-2212 and CA 03-2213 are hereby REMANDED to the Civil District Court for the Parish of Orleans.
It is FURTHER ORDERED that Plaintiff's request for attorney's fees and costs is hereby DENIED.