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Rivero v. Lung Institute, LLC

United States District Court, M.D. Florida, Tampa Division

July 23, 2018

TAMMY RIVERO, et al., Plaintiffs,



         Regenerative Medicine Solutions operates Lung Institute clinics across several states. Tammy Rivero and Howard Bennett each paid the Tampa Lung Institute for stem cell treatment but without - or so the plaintiffs allege - a satisfactory result. On August 17, 2016, Rivero sued (Doc. 5-1 at 58) Lung Institute in state court under Florida statutory and common law and alleged the deceptive marketing of an ineffectual medical treatment. Rivero amended (Docs. 5-1 at 16 and 5-5 at 50) the complaint twice. Neither the complaint nor the first and second amended complaints mentions RMS (apparently, the corporate parent of Lung Institute). On December 15, 2017, Rivero again amended (Doc. 2 at 1) the complaint to add Bennett as a plaintiff and to allege claims against, and to request relief from, RMS. (Doc. 1 at 1-2) But, oddly and unaccountably, the third amended complaint fails to name RMS as a defendant (and the plaintiff failed to serve RMS), and the third amended complaint persists in naming Lung Institute as the sole defendant.

         Two weeks later, RMS purported to remove (Doc. 1) the action and cited in the notice of removal both the general removal statute and the Class Action Fairness Act. Characterizing itself under the novelty “de facto defendant, ” RMS asserts that “[b]ecause Plaintiffs seek ‘judgment' and ‘damages' against ‘de facto defendant' RMS in the Third Amended Complaint, RMS is a party defendant that is entitled to exercise its procedural due process rights under 28 U.S.C. §§ 1332, 1441, & 1446, as amended by [the Class Action Fairness Act].” (Doc. 1 at 3) The plaintiffs move (Doc. 18) under 28 U.S.C. § 1332(d)(3) for a discretionary remand, which is opposed (Doc. 23) by the “defacto defendant” RMS. None of the complaints, including the third amended complaint, includes allegations suggestive of an attempt by the plaintiffs - under any of several possible legal theories - to disregard the corporateness of Lung Institute.

         A May 9, 2018 order (Doc. 28) states that “confusion about RMS's role, if any, in this litigation impedes the resolution of the motion [to remand]” and directs the plaintiffs to amend the complaint either to name RMS as a defendant or to omit the claims against RMS. The plaintiffs amended (Doc. 30) the complaint and omitted the claims against RMS.

         To recapitulate: a corporate person (RMS) who is not a party to this action filed a notice of removal, which under present rules immediately removed the action to the district court. The named defendant in the action has never itself either removed or formally joined in, or even consented to, the non-party's purported removal.

         I. RMS, a non-party, cannot remove the action.

         Only “the defendant or the defendants” can remove an action under 28 U.S.C. § 1446. Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 132 n.4 (2d Cir. 2006). Under 28 U.S.C. §§ 1453(b), “A class action may be removed to a district court of the United States in accordance with section 1446[] . . . such action may be removed by any defendant without the consent of all defendants.” A district court lacks subject-matter jurisdiction if a non-party removes an action. Housing Authority of City of Atlanta, Ga. v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973). “A non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings.” De Jongh v. State Farm Lloyds, 555 Fed.Appx. 435, 437 (5th Cir. 2014) (per curiam).

         The complaint and the four amended complaints name Lung Institute as the sole defendant. Because the plaintiffs never named RMS as a defendant to the state court action, RMS improperly removed the action.

         II. Lung Institute fails in the attempt to retroactively receive the benefit of RMS's putative but failed removal attempt.

         “Under the general removal procedure statute [28 U.S.C. § 1446(b)(1)], a notice of removal must ordinarily be filed within 30 days after receipt of the initial pleading or service of summons. If the case stated by the initial pleading is not removable, the notice of removal may be filed within 30 days after receipt of an amended pleading or other paper from which it may first be ascertained that the case is or has become removable . . . . This 30-day requirement applies to removal of class actions under CAFA.” Moore's Federal Practice, Vol. 16, § 107.91[4][a] (3d ed. 2016). On August 18, 2016, Rivero served (Doc. 34-1 at 1) Lung Institute with the original complaint (Doc. 5-1 at 58), which alleges facts sufficient to establish the action's removability under CAFA. No. later than September 19, 2016, Lung Institute could have removed the action, but Lung Institute elected not to remove the action.

         But on June 19, 2018, twenty-one months after the deadline for Lung Institute to remove the action, almost six months after RMS removed the action, almost five months after the plaintiffs moved to remand, and just over four months after RMS responded to the motion to remand, Lung Institute submitted (Doc. 32) a notice, which states that “the Lung Institute joins and adopts RMS's opposition to plaintiffs' motion to remand. The arguments apply equally to the Lung Institute.” (Doc. 32 at 1) This paper is not a removal or a joinder in removal or even a consent to removal but is an adoption of arguments against remand.

         The plaintiffs respond that RMS's arguments “do not apply equally to the Lung Institute” because the latter failed to remove the action within the necessary thirty-day limit (Doc. 34 at 1-2). The plaintiffs state correctly that the defendant's support for removal:

is based on removal by a non-party, non-intervenor, non-participant of this action. RMS's removal was initially improper. However, Lung Institute continues to rely on the motion of a non-party, non-intervenor, non-participant. By way of adopting and joining RMS's opposition to Plaintiff's motion to remand, Lung Institute is effectively seeking to insert itself as the removing party. However, since Lung Institute's 30-day ...

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