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RICHSTONE v. CHUBB COLONIAL LIFE INS.

December 24, 1997

GEOFFERY RICHSTONE, M.D., Plaintiff, against CHUBB COLONIAL LIFE INSURANCE, Defendant.


The opinion of the court was delivered by: BAER

 Hon. Harold Baer, Jr., District Judge:

 Plaintiff Geoffrey Richstone, M.D. ("Richstone") moves pursuant to 28 U.S.C. § 1447 to remand this action to the Small Claims Part of the Civil Court of the City of New York, where plaintiff had originally instituted this suit. For the reasons set forth below, plaintiff's motion is denied.

 I. Background

 Richstone instituted a proceeding in the Small Claims Part of the Civil Court of the City of New York ("Small Claims Court") in about March, 1997 by filing a Notice of Claim, pursuant to 22 N.Y.C.R.R. § 208.41(d) (the "NYCRR Notice"), which defendant Chubb Colonial Life Insurance Company ("Chubb"), received on April 7, 1997. This Notice of Claim simply states that Richstone seeks judgment for $ 1,535 on an "action to recover monies arising out of nonpayment for services rendered... ." On April 11, 1997 Chubb moved to dismiss this claim in Small Claims Court.

 Richstone served his opposition papers to Chubb's motion to dismiss on May 9, 1997, which papers contained the details of Richstone's claim, including a description of the alleged insured, the policy number, and the nature of the health insurance plan that the alleged insured belonged to. Chubb contends that it was only at this point that it was able to determine that the policy Richstone was attempting to collect under, a group health insurance policy insuring a Larry Cohen, fell within the ambit of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). On May 13, 1997, Chubb filed a Notice of Removal, and the action was removed to this court. On June 9, 1997, Richstone filed the instant motion to remand to state court.

 II. Discussion

 A. The Thirty Day Requirement

 Richstone argues that defendant's removal from Small Claims Court under 28 U.S.C. § 1446 was defective because defendant failed to remove within 30 days of defendant's receipt of the NYCRR Notice. Defendant argues that its removal was timely because the NYCRR Notice was inadequate and the federal character of the action was first ascertainable on May 9, 1997 when it received Richstone's opposition papers to its motion to dismiss.

 The section, 28 U.S.C. § 1446(b), which governs removal actions, provides that the notice of removal in a civil action shall be filed within 30 days after receipt by the defendant "of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based..." If the initial pleading is insufficient for such a determination, a notice of removal may be filed within 30 days after receipt by defendant of a copy of an amended pleading, motion, order or the paper from which it may be first ascertained that the case is removable. Id.

 Whether a case is removable according to the initial pleading depends on whether the initial pleading enables the defendant to "intelligently ascertain" removability from the face of such pleading, so that in its petition for removal defendant can make a short and plain statement of the facts which entitle it to remove as required in 28 U.S.C. § 1446(a). Ardison v. Villa, 248 F.2d 226, 227 (10th Cir. 1957); Figueroa v. Kim, 813 F. Supp. 267, 268 (S.D.N.Y. 1993)(where basis for removability was diversity, and plaintiff's address and the amount in controversy was included in the notice, defendant can "intelligently ascertain" the removability of the action); Flood v. Celin Jewelry Inc., 775 F. Supp. 700 (S.D.N.Y. 1991)(where a New York CPLR 305(b) notice specifically indicated that he action was based on 42 U.S.C. § 1983, defendant could "intelligently ascertain" removability of the action).

 Plaintiff argues that the NYCRR Notice satisfies these requirements. However, I find that the Notice does not constitute a document that would allow a defendant to "intelligently ascertain" the removability of the action. It states only that it is based on an "action to recover monies arising out of nonpayment for services rendered. Date of occurrence, 02-23-95." The Notice provides no indication that the action is based on a claim cognizable under ERISA. As the court stated in Rowe v. Marder, 750 F. Supp. 718 (W.D. Pa. 1990), aff'd, 935 F.2d 1282 (3d Cir. 1991):

 
...In order to satisfy the notice requirement, 'a defendant must be able to ascertain easily the necessary facts to support his removal petition.' To allow a document with less information to satisfy the statute would require the movant to "guess" as to an actions' ...

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