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Hayes v. F&M Pharmacists Specialty Pharmacy, Inc.

United States District Court, W.D. Louisiana, Lafayette Division

November 5, 2018

Hayes, et al
v.
F&M Pharmacists Specialty Pharmacy, Inc et al

          Robert R. Summerhays Magistrate Judge.

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.

         Before the Court on assignment from the district judge, is a Motion to Remand filed by Plaintiffs, Ron Addison Hayes (“Hayes” or “Plaintiff”), individually and on behalf of his three minor children, A. Hayes, C. Hayes and L. Hayes, as well as Brandie Hayes (collectively “Plaintiffs”) [Rec. Doc. 9] and Defendants, F&M Pharmacists Specialty Pharmacy. Inc., Pharmacists Mutual Insurance Company. David McCoy and Healthcare Providers Service Organization's (collectively referred to as “F&M Pharmacists"') Opposition thereto [Rec. Doc. 12]. For the reasons that follow, the Court will recommend that Plaintiffs' motion be granted.

         Factual and Procedural Background

         Plaintiffs filed this action in the Fifteenth Judicial District Court, Lafayette Parish, on January 27, 2016, naming F & M Specialty Pharmacy Inc. as a defendant. R. 1-2. On August 2, 2016, Plaintiffs filed a First Supplemental and Amending Petition adding Defendant Pharmacists Mutual Insurance Company. R. 16. On March 8, 2017, Plaintiffs filed a Second Supplemental and Amending Petition adding Healthcare Providers Service Organization and David McCoy as defendants. R. 18. Plaintiffs did not amend any paragraph in the original Petition as to the merits of their case; therefore, the Petition and both Amended Petitions contain the following allegations.

         Hayes had a double lung transplant at Ochsner Medical Center on November 6, 2014 due to advanced cystic fibrosis. R. 12-2, p. 2. On or about February 2, 2015, Defendants “negligently filled at least one prescription of Prograf and/or Tacrolimus[1] for [Hayes] which was delivered to [Hayes] at his home in Lafayette, Louisiana. R.1-2, ¶ 1. Hayes took the prescription(s) as directed. Id. Later, Hayes learned that the prescription(s) was 10 times the prescribed dosage─5 mg instead of 0.5 mg. Id. Plaintiffs further alleged that, “[g]iven that this medication was needed for [Hayes] as he recovered from lung transplant surgery, the effects of taking the wrong dosage has caused significant injury to Petitioners.” Id. Plaintiffs alleged that as a result of the high dosage Hayes suffered “serious and permanent injuries that resulted in general and special damages including but not limited to past and future physical and mental pain and suffering, past and future loss of earnings and loss of earning capacity, lost chance of survival, healing and/or recovery, that necessitated that he incur past and future medical expenses, past and future expenses for his personal care and services, past and future disability, past and future disfigurement, past and future loss of enjoyment of life, and any and all other damages available under the law, all of which entitle him to recover a sum reasonable in the premises.” Id. at ¶ 5. Petitioners further alleged that Hayes' wife and children suffered a loss of consortium, companionship, society and support as a result of Defendants' negligence. Id. at ¶6. Petitioners alleged that they were entitled to punitive damages because Defendants' actions constituted “gross negligence or willful or wanton misconduct.” Id. at ¶ 8. Finally, Petitioners stated: “At this time, it is not believed that total damages for petitioners exceed $75, 000.00 at this time, exclusive of interest and costs. Plaintiffs reserve their right to amend this Petition as more facts are known.” Id. at ¶ 9.

         Defendants removed this action on August 27, 2018. R. 1. In their Notice of Removal Defendants represented that on “August 1, 2018, Plaintiffs counsel [] sent a settlement demand in which for the first time he estimated the plaintiffs damages to be $9, 500, 000.00.” R. 1, p. 3; R. 1-5. They contended that, while Defendants removed this action over one year after it was filed, “removal is timely under 28 U.S.C. § 1446 (b) as it is being filed within thirty (30) days after receipt by defendant through service or otherwise of an ‘other paper' from which it may first be ascertained that this case is one which is removable.” R. 1, p. 4. Defendants further contended that Plaintiff acted in bad faith by concealing the actual amount of damages in order to prevent Defendants from removing the action and manipulate the forum. Id.

         Plaintiffs filed the instant motion to remand claiming that Defendants improperly removed the action for lack of timeliness. Plaintiffs rely on the second paragraph of 28 U.S.C. § 1446(b), which establishes the procedure for removal of actions that were not initially removable, but subsequently become removable. That provision provides:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b) (emphasis supplied). Plaintiffs claim that removal is untimely because more than one year elapsed between the filing of his petition and Defendants' notice of removal.

         Defendants oppose Plaintiffs' motion maintaining that Plaintiffs acted in bad faith by concealing the actual amount of damages in order to prevent Defendants from removing the action. Defendants contend, “[f]rom the inception of this lawsuit, plaintiffs were aware that damages in excess of $75, 000 would be sought, but engaged in a pattern of deception to remain in state court.” R. 12, p. 7.

         Law and Analysis

         As a general proposition, cases that are not initially removable, but subsequently become removable, may not be removed more than one year after the commencement of the action. Johnson v. Heublein, Inc., 227 F.3d 236, 241 (5th Cir.2000) (“The one-year limitation on removals applies only to the second paragraph of [§ 1446(b)], i.e. only to cases that are not initially removable); Badon v. RJR Nabisco Inc., 224 F.3d 382, 389 (5th Cir.2000) (“We have clearly held that the ‘except' clause applies only to cases governed by the second paragraph of section 1446(b).”). In Louisiana, the one-year time limit runs from the date the lawsuit is filed. See La.C.C.P. art. 421; New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 885 (5th Cir.1993). This case commenced on January 27, 2016, and was removed on August 27, 2018, more than one year after commencement. Thus, removal is untimely unless an equitable estoppel exception to the one-year time limit applies.

         The “conduct of the parties” is considered to determine whether “it is equitable to strictly apply the one-year limit” under the rule recognized by the Fifth Circuit in Tedford v. Warner-Lambert Co., 327 F.3d 423, 426 (5th 2003). The Tedford rule permits equitable tolling of deadlines only where the facts demonstrate that “a plaintiff has attempted to manipulate the statutory rules for determining federal removal jurisdiction, thereby preventing the defendant from exercising its rights.” Tedford, 327 F.3d at 427-29. “Courts have narrowly drawn this equitable exception by requiring clear evidence rather than mere suspicion of forum manipulation.” Space Maker Designs, Inc. v. Steel King Indus., Inc., 2010 WL 2680098, at ...


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