PHILADELPHIA – A federal judge has opted to remand a medical malpractice wrongful death and survival action to the Philadelphia County Court of Common Pleas, after finding the defendants did not file to remove the matter to federal court in a timely fashion.
U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher made the ruling on July 28, in regards to the action of Guzak v. Virtual Radiologic Corporation Et.Al.
Guzak originally brought the action in the Philadelphia County Court of Common Pleas on Jan. 3, 2018, charging Virtual Radiologic Corporation and others with failing to render a proper diagnosis of Mark Kahuila’s aortic dissection, which later resulted in his death.
The defendants filed a notice for removal on Nov. 25, 2019.
Guzak then responded with a motion to remand the matter to state court and objection to the defendant’s notice of removal while raising three arguments: The notice was not timely filed, there is not proper diversity and the defendants failed to allege bad faith on the part of the plaintiff.
Gallagher began his analysis by referring to the pertinent section of U.S. Code.
“Section 1446(B)(3) of the U.S. Code only allows removal ‘within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable,” Gallagher said.
Gallagher said that there is an express limitation period of one year, pursuant to 28 U.S.C.A. Section 1446 (b)(1), which precludes removal “unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”
Gallagher added under any time period calculation, the defendants’ removal petition was untimely and in this case, “the order or other paper from which it may first be ascertained that the case is one which is or has become removable” was the Dec. 27, 2018 order dismissing the non-diverse defendant Diagnostic Imaging, Inc.
The removal notice was filed over 300 days later.
“Defendants argue that the 30 days for removal did not commence until plaintiff’s motion to reinstate the non-diverse defendant, filed on June 25, 2019, was denied on Oct. 11, 2019. Even considering defendants’ position, 30 days from the date of that Oct. 11, 2019 order of Judge Carpenter denying plaintiff’s motion to reinstate the non-diverse defendant was Nov. 11, 2019. This matter was not removed until Nov. 25, 2019. Therefore, even under than analysis, this petition for removal was filed 14 days late,” Gallagher said.
Gallagher then relinquished jurisdiction over the matter and remanded it to the Philadelphia County Court of Common Pleas.
“Because all calculations of the 30 days for removal fail under each permutation, the only way removing defendants could prevail would be to prove that plaintiff acted in bad faith pursuant to 18 U.S.C.A. Section 1446(c). Defendants, however, have failed to allege or otherwise support any allegation of bad faith on the part of the plaintiff. As a result, the U.S. District Court is without jurisdiction over this matter,” Gallagher stated.
The plaintiff is represented by John F.X. Fenerty of The Fenerty Law Firm, in Huntingdon Valley.
The defendants are represented by David John Krolikowski of Marshall Dennehey Warner Coleman & Goggin in King of Prussia, plus Chilton G. Goebel III and Lauren Alexa Green of German Gallagher & Murtaugh, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05543
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com