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Komeshak v. Risk Enterprise Management Services

October 31, 2006

PATRICK B. KOMESHAK, D.C. D/B/A KOMESHAK CHIROPRACTIC AND THOMAS L. KALTENBRONN, D.C., PLAINTIFFS,
v.
RISK ENTERPRISE MANAGEMENT SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

I. Introduction

Before the Court is a motion to remand submitted by Plaintiffs Patrick Komeshak, d/b/a Komeshak Chiropractic and Thomas Kaltenbronn ("Plaintiffs"). (Doc. 9.) Defendant Risk Enterprise Management Services, Inc. ("Defendant") responds in opposition. (Doc. 15.) For the reasons below, the Court grants Plaintiffs' motion and remands the case to the St. Clair County Circuit Court.

II. Background

Plaintiffs, on behalf of a putative class, originally brought this case in St. Clair County Court, alleging that Defendant "systematically, arbitrarily, and unlawfully reduc[ed] or den[ied] payments for medical services based on use of biased and arbitrary computer software programs, and based on improper 'Silent PPO' discounts." (Doc. 2, Pls. Compl., ¶ 2.) Plaintiff's filed suit on February 14, 2005, four days before the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 14 ("CAFA") went into effect. The defendant named on the complaint was "Risk Enterprise Management Services, Inc." (Doc. 10, Ex. B.) The agent listed for service was Ronald L. Gage, 25W555 Webster Ave., Roselle, Illinois. (Id.)

That information, however, was incorrect. The instant Defendant, who Plaintiffs intended to sue, is named Risk Enterprise Management Services Limited ("REM Ltd."), not Incorporated. Furthermore, Ronald Gage was not (and is not) an agent of REM Ltd. Nor was his address a business address used by that Defendant. These facts initially precluded Plaintiffs from effecting service on the proper defendant. Between March 9, 2005 and March 14, 2005, Plaintiffs' licensed process server unsuccessfully attempted to serve Mr. Gage seven times. (Doc. 9, Ex. 1.) After some investigation, Plaintiffs eventually discovered the correct identity of REM Ltd.'s agent, CT Corporation Systems. During October and November 2005, Plaintiffs requested two alias summons, which correctly identified CT Corporation as REM Ltd.'s agent, but continued to incorrectly identify the Defendant as Risk Enterprise Management Services, Inc. (Doc. 1, Ex. C and D.) CT Corporation refused service, based on the fact that it is not the registered agent for Risk Enterprise Management Services, Inc. (Doc. 9, Ex. 3.) Finally, on December 28, 2005, the St. Clair County Court entered an order replacing the name "Risk Enterprise Management Services, Inc." with "Risk Management Limited." (Doc. 10, Ex. B.) The court also ordered the clerk to issue alias summons to "Risk Enterprise Management Limited." (Id.) On February 7, 2006, Defendant REM Ltd. was served. Defendant removed the case to this Court three-and-a-half weeks thereafter. (Doc. 1.) Defendant's Notice of Removal alleged that because this case commenced after CAFA's February 18, 2005 effective date, federal jurisdiction is proper.

III. Analysis

A. Removal Standard

A defendant may remove a case only if a federal district court would have original jurisdiction over the action. See 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Statutes providing for removal are construed narrowly, and doubts about removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The burden of establishing jurisdiction in the federal courts falls on the party seeking removal. Id.

B. CAFA

CAFA was enacted by Congress on February 18, 2005 and applies only to cases commencing thereafter. Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 9, 119 Stat. 14 (amending 28 U.S.C. § 1332(d)(2)). CAFA, in pertinent part, establishes federal jurisdiction over class actions in which minimal diversity is present and "the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs." 28 U.S.C. § 1332(d)(2)(A).

C. Defendant's Removal

1. Relation Back

In this case, Defendant claims that Plaintiffs' December 28, 2005 amendment commenced a new case for CAFA purposes, and thus, since CAFA went into effect on February 18th of that year, federal jurisdiction is proper. Plaintiffs disagree. They argue that the December 28th amendment relates back to the date of filing, and thus that their suit was filed before ...


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