January 29, 2004.
ALLSTATE INSURANCE COMPANY, NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF ILLINOIS, THE CONTINENTAL INSURANCE COMPANY, FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, BUCKEYE UNION INSURANCE COMPANY, GLEN FALLS INSURANCE COMPANY, and BOSTON OLD COLONY INSURANCE CO, Plaintiffs, -against- GARRI ZHIGUN, VIRENDRA BHAREL, M.D., MIRON FAYNGERSH, M.D., GENNADY FINKELBERG a/k/a GENA FINKELBERG, GENNADY KISELMAN, STEVE ZELTSER a/k/a VLADISLAV ZELTSER, YAKOV MELMAN a/k/a JACK MELMAN, KONSTANTIN MARKEVICK, ANATOLI POPILEVSKY, ROMAN POPILEVSKY, ALEXANDER VAYNER, ZAKHAR VOLOZIN, LEONID TYLMAN, PACIFIC MEDICAL, P.C., ESSENTIAL MEDICAL SERVICES, P.C., COMPLETE MEDICAL OF NEW YORK, P.C, BIOTECH SURGICAL SUPPLIES, INC., TRANS MEDICAL SUPPLIES, INC., MEDTCH MEDICAL SUPPLIES, INC., FOSTER MEDICAL EQUIPMENT & SUPPLIES, INC., CERTIFIED HEALTH PRODUCTS, INC., ORTHO MED DISTRIBUTORS, INC., UMBER MEDICAL DISTRIBUTORS, INC., MED CARE PRODUCTS, INC., RODNEY HAWKINS, QUENTIN HAWKINS, JOHN DOES 1 THROUGH 20, JANE DOES 1 THROUGH 20, ABC CORPORATIONS 1 THROUGH 20, AND XYZ CORPORATIONS 1 THROUGH 20. Defendants
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
Four defendants have removed this action from New York Supreme Court,
New York County, to the United States District Court of the Southern
District of New York pursuant to 28 U.S.C. § 1441(a). However, because
all defendants over whom the state court had acquired jurisdiction did
not join in the notice of removal, this action is remanded to the state
court in which it was originally filed.
This action was filed in Supreme Court, New York County, on November
20, 2003. Plaintiff insurance companies allege that defendants violated
the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961, 1962(c) & (d) and 1964(c), and New York statutes and
common law, and seek relief from fifty-five named and unnamed individual
defendants and fifty-one named and unnamed corporate defendants. In
general, the complaint alleges that defendants engaged in schemes to
submit false claims to the insurance companies.
On the last day of 2003, four defendants Miron Fayngersh, M.D.,
Pacific Medical, P.C., Jack Melman and Konstantin Markevich petitioned
for removal of the state action to this Court pursuant to 28 U.S.C. § 1441
(a) on the grounds that the RICO claims in the complaint are federal
questions, and therefore this Court has original jurisdiction over the
complaint because it is a "civil action arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
In their notice of removal, those four defendants represented that the
removal was timely because it was made within thirty days of their
receipt of the summons and complaint, as required by 28 U.S.C. § 1446(b).
(Def.'s Not. Removal, p. 3). They did not represent whether the other
defendants who had been served with process had consented to removal. As
of December 31, 2003, when defendants filed the notice of removal,
eighteen defendants had been served with the Summons and Complaint in
this action. (Pl.'s Mem. Supp. Remand, Exh. 1, "Affidavits of Service").
On January 12, 2004, this Court ordered the removing defendants to show
cause why this action should not be remanded to the state court based on
their failure to comply
with the statutory requirements of 28 U.S.C. § 1447(c) in preparing the
notice of removal. Oral argument was heard on that motion on January 20,
At that argument, counsel for the removing defendants stated that he
had spoken with plaintiffs' counsel prior to removing this action and was
informed by him that other defendants, in addition to the removing
defendants, had been served in the state court with process. (See Trans.
Oral Arg., Jan. 20, 2004, p. 5-8).
Pursuant to 28 U.S.C. § 1441, a civil action initially filed in state
court may be removed by the defendant to the federal district court
embracing the place where the state court action is pending if the
district court has original subject matter jurisdiction over the
plaintiff's claim. See Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 271
(2d Cir. 1994).*fn1
The procedures governing a removal pursuant to 28 U.S.C. § 1441 are set
forth in 28 U.S.C. § 1446 and 1447. Section 1446 requires a defendant to
take certain steps in order to remove an action properly, and section
1447 grants any federal district court presiding over a removed action
discretion to remand that action if the statutory prerequisites of
section 1446 have not been met as follows:
"[a] motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the
notice of removal under section 1446(a). If at any
time before final judgment it appears that the
district court lacks subject matter jurisdiction, the
case shall be remanded. . . ."
Thus, the district court has thirty days from the date of the filing of
the notice of removal to remand the action for a defect ...
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