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Allstate New Jersey Insurance Co. v. Summit Pharmacy, Inc.

United States District Court, Third Circuit

December 19, 2013

ALLSTATE NEW JERSEY INSURANCE COMPANY, et al., Plaintiffs,
v.
SUMMIT PHARMACY, INC., et al., Defendants.

MEMORANDUM OPINION

JEROME B. SIMANDLE, Chief District Judge.

This matter comes before the Court on Plaintiffs' motion to remand to New Jersey Superior Court [Docket Item 3], which the Court will deny. The Court finds as follows:

1. On August 8, 2013, Plaintiffs Allstate New Jersey Insurance Company, Allstate Indemnity Company, Allstate Property and Casualty Insurance Company, Allstate New Jersey Property and Casualty Insurance Company, and Allstate Insurance Company (collectively "Allstate") filed a complaint in New Jersey Superior Court against 31 named Defendants: Summit Pharmacy, Inc.; Jonathan Morton, CEO; Joel Morton, DO; Laurie Meade, COO/president; Apral Jones, pharmacist; Sherri Oxford, pharmacist; Cang Nguyen, pharmacist; Lonny Allis, pharmacist; Mauricio Fabiano, pharmacist; Stephen Persons, pharmacist; Matt Peters, pharmacist; Tien Lai, pharmacist; Jessica Lee; Melissa Fuentes FLAA; William Crane; Jill M. Salajka; Kimberly Bastian; Janine Centenzo; Mataleigh Walling; Libby Fuentes; Ashley Levin; Meliza Miranda; South Jersey Health and Wellness, LLC; Daniel DePrince, III, DO; Anthony C. Carabasi, DC; Michael Edenzon, DC; Ty Countess; Neurology Pain Associates PC; Neurological Trauma Associates; Russell Abrams, MD; and Keith Preis, MD.[1]

2. Plaintiffs asserted claims under the federal Racketeer Influenced and Corrupt Organizations ("RICO") Act, the New Jersey RICO statute, and the New Jersey Insurance Fraud Prevention Act. Plaintiffs sought declaratory judgment and disgorgement of funds for an alleged conspiracy to unlawfully provide prescription services to customers receiving personal injury protection ("PIP") benefits from Allstate. Plaintiffs allege that Defendants "denied Allstate insureds the right to have their prescriptions filled by a pharmacy of the insureds' choice by using pressure, inducement, and subterfuge..." to steer them to Defendant Summit Pharmacy. (Compl. ¶ 56.) Plaintiffs also allege that "Defendant Summit provided prescription services to patients of Defendant medical providers in violation of New Jersey and Arizona registration, licensing and medical record requirements." (Compl. ¶ 117.) Plaintiffs sought to recover more than $2, 296, 074.84. (Compl. ¶ 56.)

3. On August 22, 2013, Plaintiffs filed an Amended Complaint, which included one new Plaintiff, Encompass Insurance Company, and six new Defendants, Summit Testing, Inc.; James Scullin, Board of Director; Charles McWade, Board of Director; Luke O'Brien, Board of Director; Charles G. Avetian, DO; and Leslie Davis, PA.[2]

4. On September 27, 2013, eight Defendants filed a notice of removal [Docket Item 1]. The eight Defendants were South Jersey Health and Wellness, LLC; Daniel DePrince, III, DO; Anthony C. Carabasi, DC; Michael Edenzon, DC; Neurology Pain Associates, PC; Neurological Trauma Associates; Russell Abrams, MD; and Keith Preis, MD. These eight Defendants asserted that this Court had both original and diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332.

5. On October 25, 2013, Plaintiffs filed a motion to remand [Docket Item 3] arguing that the notice of removal did not include all the named Defendants and did not indicate that all named Defendants consented to removal, thus violating the unanimity rule. Plaintiffs also argued that the notice of removal was not timely because it was filed more than 30 days after service of process in the state court action. Plaintiffs demanded costs and expenses as a result of the eight Defendants' defective removal.

6. On October 29, 2013, Defendants Summit Pharmacy, Inc.; Summit Testing, Inc.; Jonathan Morton, CEO; Joel Morton, DO; Laurie Meade, COO/President; James Scullin, Board of Director; Charles McWade Board of Director; Luke O'Brien, Board of Director; Apral Jones, Pharmacist; Sherri Oxford, Pharmacist; Cang Nguyen, Pharmacist; Lonny Allis, Pharmacist; Mauricio Fabiano, Pharmacist; Stephen Persons, Pharmacist; Matt Peters, Pharmacist; Tien Lai, Pharmacist; Jessica Lee; Melisa Fuentes Flaa; William Crane; Jill M. Salajka; Kimberly Bastian; Janine Centanzo; Nataleigh Walling; Libby Fuentes; Ashley Levin; and Meliza Miranda filed a notice consenting to and joining the removal petition. [Docket Item 4.]

7. Also on October 29, 2013, an amended stipulation [Docket Item 7] was filed showing that Defendant Robert Ty Countess also consented to removal.

8. On October 30, 2013, Plaintiffs filed a reply [Docket Item 8] arguing that the subsequent filing of the untimely notices of consent did not satisfy the unanimity rule and that the notice of removal was still untimely.

9. On October 3, 2013, Plaintiffs filed a second amended complaint in the state court action and added seventeen named Defendants: Jeff Schwartz, pharmacist; Nick Centanzo; Eva Jee; Christopher Virginia; Jessica Starkovich; Phanida Phivilay; Advanced Spine and Pain, LLC; Young J. Lee, MD; Milind D. Patharkar, MD; R. Todd Rinnier, DO; Eileen Manabat, MD; Adaku U. Nwachuku, DO; Chioma Ezeadichie, DO; Tracey Hessert, NP; Kyriaki Sandy Revenidis, APN; Maraynn Mascl, APN; and Ijeoma Menkltl, ANP-BC ("new Defendants"). Plaintiffs asserted, inter alia, their federal RICO claim against the new Defendants.

10. On November 1, 2013, a second notice of removal [Docket Item 9] was filed by Defendants Summit Pharmacy, Summit Testing, and various Summit employees (collectively "Summit Defendants"): Jonathan Morton, CEO; Joel Morton, D.O.; Laurie Meade, COO/President; James Scullin, Board of Director; Charles McWade, Board of Director; Luke O'Brien, Board of Director; Apral Jones, Pharmacist; Sherri Oxford, Pharmacist; Cang Nguyen, Pharmacist; Lonny Allis, Pharmacist; Mauricio Franco, Pharmacist; Stephen Persons, Pharmacist; Matt Peters, Pharmacist; Tien Lai, Pharmacist; Jeff Schwartz, Pharmacist; Jessica Lee; Melisa Fuentes Flaa; William Crane; Jill M. Salajka; Kimberly Bastian; Janine Centanzo; Nataleigh Walling; Libby Fuentes; Ashley Levin; Meliza Miranda; Nick Centanzo; Eva Jee; Christopher Virginia; Jesica Starkovich; and Phanida Phivilay. Some of these Defendants were named for the first time in Plaintiffs' second amended complaint.

11. The second notice of removal included written consent to removal from all other Defendants [Docket Item 9-7].

12. Defendants argued that even if the first notice of removal was defective or untimely, they "may still remove this case... by virtue of Plaintiffs' filing of the Second Amended Complaint and the naming of additional Defendants therein." (Def. 2nd Notice Removal ¶ 17.) Essentially, Defendants asserted that the second amended complaint setting forth federal claims ...


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