-DEA ATLANITC AMBULATORY ANETHESIA ASSOCIATES, LLC et al v. RUSSOMANO et al, No. 3:2010cv06275 - Document 2 (D.N.J. 2010)

Court Description: OPINION filed. Signed by Judge Mary L. Cooper on 12/7/2010. (mmh)

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY : : CIVIL ACTION NO. 10-6275 (MLC) : : O P I N I O N Plaintiff, : : v. : : RICHARD RUSSOMANO, : : Defendant. : : : RICHARD RUSSOMANO, : : Third-party Plaintiff, : : v. : : RARITAN HIGH SCHOOL and MAGNACARE, : : Third-party Defendants. : : ATLANTIC AMBULATORY ANESTHESIA ASSOCIATES, LLC, THE PLAINTIFF, Atlantic Ambulatory Anesthesia Associates, LLC ( AAA ) commenced the first-party action seeking payment for medical services against the defendant, Richard Russomano, in New Jersey state court in February 2010 ( Reimbursement Action ). (Dkt. entry no. 1, Rmv. Not. at 1.)1 Russomano brought a third- party action in June 2010 seeking indemnification for the claims asserted in the Reimbursement Action against two third-party defendants, Raritan High School and Mangnacare. 1, Third-party Compl.) 1 (Dkt. entry no. Magnacare alone removed the entire case The Westlaw database confirms that the Reimbursement Action was commenced in February 2010 under state court number DC-3891-10. from state court based upon Magnacare s assertion that [t]his matter arises out of claims by a healthcare provider for nonpayment of healthcare services provided to [AAA s] patient [i.e., Russomano,] and claims for the denial of alleged group health insurance coverage , and thus [s]ubject matter jurisdiction is . . . under 28 U.S.C. § 1331 and the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. (Rmv. Not. at 2.) WHETHER a third-party defendant may seek the removal of an entire case is an open question. See Bank of N.Y. v. Ukpe, No. 09-1710, 2009 WL 4895253, at *5-6 (D.N.J. Dec. 9, 2009) (discussing same). Assuming, arguendo, that such a removal is permitted, a third-party defendant may remove an entire case only if the third-party claims are separate and independent from the first-party claims. Id. at *6. Thus, if a third-party claim is substantially derived from the same set of facts as a firstparty claim that is no longer removable, then the third-party claim is not a separate and independent claim. Id. at *7. Russomano s third-party indemnification claims are substantially derived from the Reimbursement Action, and thus Magnacare cannot remove them. See id. at *1-2, *7 (remanding entire case where first-party plaintiff brought state-court foreclosure action, defendant brought third-party claim under federal law, and thirdparty defendant removed entire case); see also Somerset Med. Ctr. 2 v. Jewett, No. 08-5135, 2009 WL 792269, at *4 (D.N.J. Mar. 23, 2009) (remanding entire case where plaintiff medical provider brought state-court collection action, defendant brought thirdparty indemnification action, and third-party defendant removed under ERISA, because (1) defendant s indemnification claim against third-party defendant arose directly from plaintiff s claim for payment, and (2) right to indemnification was dependent on judgment being awarded against defendant); Hackensack Univ. Med. Ctr. v. Lagno, No. 06-687, 2006 WL 3246582, at *6 (D.N.J. Nov. 3, 2006) (same). entire case. Therefore, the Court will remand the The Court will issue an appropriate order and judgment. s/ Mary L. Cooper MARY L. COOPER United States District Judge Dated: December 7, 2010 3

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