Roe v. McGuire

         IN CHAMBERS-ORDER RE PLAINTIFF'S MOTION TO REMAND [22]

          Present The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES-GENERAL

          Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

         Plaintiff Jane Roe originally filed this action in Riverside County Superior Court against Defendants John Francis Mcguire, M.D., United Healthcare Services, Inc. ("UHS"), North County ENT Medical Group, and Tri-Valley Internal Medicine Group on September 30, 2015. ("Compl") [Doc. # 1-1.] Defendant UHS removed the case to this Court on May 13, 2016, on the basis of federal question jurisdiction. ("Removal Notice") [Doc. # 1.] On June 13, 2016, Roe filed a motion to remand. [Doc. # 22.] On June 24, 2016, UHS filed an opposition. [Doc. # 24.]

         For the reasons stated below, the Court GRANTS Roe's motion to remand.

         I. LEGAL STANDARD

         "The burden of establishing federal subject matter jurisdiction falls on the party invoking removal." Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998)). A defendant may remove an action brought in state court to a federal district court where the action is pending if the district court has original jurisdiction over the action. 28 U.S.C. § 1441. A federal district court has original jurisdiction over "all civil actions arising under the Constitution, law, or treaties of the United States." 28 U.S.C. § 1331. The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citation omitted); see also Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005) ("removal statutes should be construed narrowly in favor of remand to protect the jurisdiction of state courts."). There is a "strong presumption against removal jurisdiction, " and courts must reject it "if there is any doubt as to the right of removal in the first instance." Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (internal quotation marks omitted) (emphasis added).

         II. DISCUSSION

         A. Timeliness

         The notice of removal of a civil action shall 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 is based. 28 U.S.C. § 1446(b)(1). Failure to remove an action within 30 days waives a party's right to remove. Cantrell v. Great Republic, Inc., 873 F.2d 1249, 1256 (9th Cir. 1989). Generally, a federal claim must appear on the face of a well-pleaded complaint for federal question jurisdiction. Lyons v. Alaska Teamsters Employer Serv. Corp., 188 F.3d 1170, 1171 (9th Cir. 1999). If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days of receipt by the defendant of a copy of "‘an amended pleading, motion, order, or other paper' from which it may be ascertained that the case is removable." Jordan v. Nationstar Mortgage LLC, 781 F.3d 1178, 1181 (9th Cir. 2015) (quoting 28 U.S.C. § 1446(b)(3)).

         Here, the parties disagree over whether the 30-day clock started on March 29, 2016 or April 15, 2016. At issue is what information UHS needed from Roe-a pseudonym offered given the nature of the lawsuit-regarding her identity in order to ascertain whether her claims were completely preempted by federal law or could have been brought in federal court pursuant to the federal officer statute, 28 U.S.C. § 1442(a). Roe argues that because her counsel provided UHS with her real name on March 29, 2016, UHS's attempt at removal 45 days later on May 13, 2016 is untimely. See Declaration of Jason M. Caruso, Ex. 3 (email from Roe's counsel to UHS revealing Roe's legal name). By March 29, 2016, Roe contends UHS possessed written information from which it could ascertain the case's removability.

         UHS disagrees and argues that while it did receive her name on March 29, her "true identity" was not known to UHS until April 15, 2016, when Plaintiff's counsel provided information-her date of birth and last four digits of her social security number-which enabled UHS to "positively identify" her. Opp. at 4; Declaration of Jane E. Stalinski ("Stalinski Decl.") ¶ 11. This information allowed UHS to search its computer systems to determine her membership in two different health benefit plans, one ERISA plan and another Federal Employee Benefits HMO ("FEHBA Plan"). Stalinski Decl. ¶¶ 14-16. UHS then based its removal in part on preemption under ERISA and FEHBA.

         According to UHS, "[a]ttempting to identify a member with only a name may: (i) fail to identify anyone; (2) identify an individual who cannot be confirmed to be the correct Member; or (3) identify a number of members, none of whom can be confirmed to be the correct member without additional unique identifying information." Id. ¶ 7 (emphasis added). To "positively identify" a member, UHS states that it needs information like the date of birth and "ideally, " the member number and date of services. Id. ¶ 10.

         While UHS presents a declaration of the Legal Services Specialist at UHS who attests broadly to the general theoretical difficulties with identifying members with only a name-and the potential futile results-UHS presents no evidence concerning whether it did in fact attempt to search for Roe's membership using only her name. UHS asserts it could not "positively identify" Roe's membership until it received her social security and birth date information, but says ...