PHILADELPHIA – A case claiming an optical examination center violated commercial and antitrust laws by requiring its patients to purchase eyeglasses before receiving their prescriptions is on its way back to state court.
On Sept. 21, U.S. District Court for the Eastern District of Pennsylvania Judge Harvey Bartle III remanded a lawsuit filed by plaintiff Alisha Alejandro against Philadelphia Vision Center, Bruce Rubin and Louisa C. Gaiter Johnson.
Alejandro initially filed suit in the Philadelphia County Court of Common Pleas in July, claiming the defendants violated state commercial and federal anti-trust laws by requiring her and other patients to purchase eyeglasses before providing prescriptions, despite being compensated by the patients’ insurance companies for their medical treatment.
Defendant Johnson filed to remove the action to federal court, but Alejandro countered with a motion to remand the matter to state court, claiming that all the defendants did not consent to timely removal of the case.
“Under 28 U.S.C. Section 1441, a civil action such as this where the district court has original jurisdiction may be removed from the state court to the federal court. Removal must occur ‘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.’ In addition, ‘all defendants who have been properly joined and served must join in or consent to the removal of the action,” Bartle said.
Bartle said the question before the federal court was whether the statement of PVC and Rubin not objecting to removal in their Aug. 1 motion to dismiss the complaint constituted consent to removal. In Bartle’s view, it did not and was instead “at best an ambiguous signal.”
“The removal statute must be strictly construed in favor of state court jurisdiction. PVC and Rubin did not expressly, officially and unambiguously consent to remove this action to the federal court in a timely manner. Their words in their August 1, 2017 motion to dismiss that they ‘did not object’ to Johnson’s removal will not suffice. Recognizing the deficiency, they belatedly docketed a ‘Confirmation of Consent to Removal’ but not until August 16, 2017, a day after plaintiff filed her motion to remand,” Bartle stated.
Bartle further concluded since the defendants’ consent for removal came after the mandated 30-day window since they were served with the complaint on July 5, it was too late.
“Accordingly, since all defendants did not timely consent to removal, this action will be remanded to the Court of Common Pleas of Philadelphia County,” Bartle said.
The plaintiff is represented by Paul A.R. Stewart of Helm Legal Services, in Wynnewood.
The defendants are represented by Steven H. Rubin in West Chester and Jason Walter Bialker and Jeffrey P. Bates of Marshall Dennehey Warner Coleman & Goggin, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-03304
Philadelphia County Court of Common Pleas case 170207325
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com