Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MONMOUTH-OCEAN COLLECTION SERVICE, INC. v. KLOR

April 5, 1999

MONMOUTH-OCEAN COLLECTION SERVICE, INC., ASSIGNEE OF KIMBALL MEDICAL CENTER, MCOC EMERGENCY PHYSICIANS, AND JERSEY SHORE RADIOLOGY ASSOCIATES, PLAINTIFFS,
v.
NOACH KLOR AND MICHLA KLOR, INDIVIDUALLY AND/OR JOINTLY, DEFENDANTS/THIRD-PARTY PLAINTIFFS, V. U.S. HEALTHCARE, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Hayden, District Judge.

ORDER

For the reasons expressed in the Report and Recommendation of the Honorable Ronald J. Hedges. United States Magistrate Judge, filed on February 25, 1999; and this Court receiving no objection thereto:

It is on this 1st day of April, 1999

ORDERED that this action is remanded to the Superior Court of New Jersey, Law Division, Monmouth County; and it is further

ORDERED that the Report and Recommendation of the United States Magistrate Judge is adopted and incorporated as the Opinion of this Court.

HEDGES, United States Magistrate Judge.

REPORT AND RECOMMENDATION

INTRODUCTION

On December 16, 1998, I issued an Order directing third-party defendant U.S. Healthcare, Inc. ("Healthcare"), to show cause why this civil action should not be remanded. In response, Healthcare submitted a memorandum of law. There was no oral argument. Rule 78.

STATEMENT OF FACTS

This civil action originated with the filing of the Complaint on February 11, 1998 in the Superior Court of New Jersey, Law Division, Monmouth County. Plaintiff Monmouth-Ocean Collection Service, Inc. ("plaintiff"), was designated in the Complaint as the assignee of Kimball Medical Center, MCOC Emergency Physicians and Jersey Shore Radiology Associates. Noach Klor and Michla Klor were named as defendants. Plaintiff alleged in the First Count of the Complaint that defendants were indebted to Kimball Medical Center for "goods, sold and delivered, services rendered, and/or on a certain book account in the sum of $11,358.00." Plaintiff alleged in the Second Count that defendants were indebted to MCOC Emergency Physicians for "goods sold and delivered, services rendered, and/or on a certain book account the sum of $155.00." Plaintiff alleged in the Third Count that defendants were indebted to Jersey Shore Radiology Associates for "goods sold and delivered, services rendered, and/or on a certain book account in the sum of $6.76."

On June 19, 1998, defendants filed a Third-Party Complaint. Healthcare was named as the third-party defendant. The Third-Party Complaint alleged that Noach Klor "has multiple sclerosis and receives regular treatment at Kimball Medical Center, plaintiff's assignee." Paragraph 3. It further alleges that, for a certain period of time, Noach Klor's "medical expenses were covered through Medicare and Charity Care." Paragraph 4. Michla Klor is alleged to have seen a Healthcare newspaper advertisement and to have responded to that advertisement with a request for information. Paragraphs 5-7. Thereafter, Healthcare enrolled Noach Klor in a "Medicare Plan," after which Michla Klor requested that he be disenrolled. According to the Third-Party Complaint, as a result of Noach Klor's enrollment with Healthcare, neither Medicare nor Charity Care would pay for hospitalization in October of 1995 and, inasmuch as Noach Klor did not have a referral from a primary physician, neither would Healthcare. Paragraphs 8-16.

In the First Count of the Third-Party Complaint, the Klors alleged that the advertisement was misleading and in violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. In the Second Count of the Third Party Complaint, the Klors alleged that Healthcare misrepresented Noach Klor's enrollment status to Kimball Medical Center and that, as a result of the misrepresentation, Healthcare "should be held liable for the cost of the medical services rendered." Paragraph 24. In the Third Count, the Klors alleged that Healthcare negligently failed to advise Noach Klor that he should have secured a referral from a primary care physician before being hospitalized.

Under the First Count, the Klors seek treble damages and attorney's fees pursuant to N.J.S.A. 56:8-19. Under the Second and Third Counts, the Klors seek indemnification from Healthcare should they be held liable to plaintiff.

Healthcare removed this civil action on August 14, 1998. Healthcare alleged that the Third-Party Complaint stated a federal question under 28 U.S.C. § 1331, that the Third-Party Complaint stated a claim for Medicare benefits against Healthcare, that Noach Klor was a Medicare beneficiary enrolled in Healthcare, and that the sole remedy of the Klors was to pursue an appeals process with the Health Care Financing Administration.

I conducted an initial scheduling conference on December 16, 1998. I questioned whether this civil action was removable and issued the pending Order to Show Cause.*fn1

DISCUSSION

The removal statutes are to be strictly construed with doubt as to the propriety of removal resolved in favor of remand. See, e.g., Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir. 1994). Only actions that could have originally been brought in federal court may be removed. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

Examination of the Complaint reveals that there is no diversity jurisdiction. Thus, removal must be predicated on the existence of a federal question. Charter Fairmount Institute, Inc. v. Alta Health Strategies, 835 F. Supp. 233, 234 (E.D.Pa. 1993). "In order for a case to be removable under § 1441 and § 1331, the well-pleaded complaint rule requires the federal question be presented on the face of the plaintiff's properly pleaded complaint." Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.Co., 858 F.2d 936, 939 (3d Cir. 1988). The plaintiff is the master of the claim and may "avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (footnote omitted). "[A] case may not be removed to a federal court on the basis of a federal defense ***." Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d 90, 93 (3d Cir. 1989).

Here, the "well-pleaded complaint" alleges only state law causes of action against defendants. It does not present a federal question on its face. The question thus arises whether a third-party defendant such as Healthcare may invoke the removal statutes. I am satisfied that Healthcare may not.

Any discussion of removal must begin with 28 U.S.C. § 1441. It provides, in pertinent part:

  (a) Except as otherwise expressly provided by Act of
  Congress, any civil action brought in a State court
  of which the district courts of the United States
  have original jurisdiction, may be removed by the
  defendant or the defendants, to the district court of
  the United States for the district and division
  embracing the place where such action is pending. For
  purposes of removal under this chapter, the
  citizenship of defendants sued under fictitious names
  shall be disregarded.
  (b) Any civil action of which the district courts
  have original jurisdiction founded on a claim or
  right arising under the Constitution, treaties or
  laws of the United States shall be removable without
  regard to the citizenship or residence of the
  parties. Any other such action shall be removable
  only if none of the parties in interest properly
  ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.