Opinion
Civ. No. JFM-98-1789.
October 16, 1998.
MEMORANDUM
Plaintiff, Charlene Green on behalf of the Estate of Rinetta Green, filed a Statement of Claim with the Health Claims Arbitration Office of Maryland ("HCA") against defendants Dr. Morteza Safavian, Dr. Rajas and Greater Southeast Community Hospital ("Hospital"), alleging claims for medical malpractice and wrongful death. On June 5, 1998, defendant Hospital filed a written "election to waive arbitration" with the HCA and removed the case to this Court. Now, however, the Hospital has filed a motion to remand the case back to the HCA. The motion for remand will be denied because the HCA no longer has jurisdiction over the case. However, the case will be dismissed without prejudice because this Court lacks removal jurisdiction.
The Hospital has also filed a motion to stay the proceedings in this court pending a decision on the motion to dismiss filed with the HCA. Because I lack jurisdiction over the case, I have no authority to grant a stay.
This case presents an extremely unusual situation because the defendant, who removed the case to this Court, is now arguing that removal was improper, and the plaintiff finds itself in the position of arguing in favor of removal. This peculiar posture arose when the Hospital, after simultaneously filing its "election to waive arbitration" (the "election") and its removal papers, apparently changed its mind and decided that it wanted HCA to decide its motion to dismiss.
For two reasons, I am of the view that the Hospital improperly removed the case to this Court. First, the Hospital had filed a written election, which, if properly filed according to Md. Code Ann., Cts. Jud. Proc. § 3-2A-06B, ends the HCA's jurisdiction over a case and allows the case to be filed in state or federal court. After an election is filed, under the Maryland statute, it would appear that the case is not pending in any forum. The plaintiff is therefore required to file a complaint and a copy of the election in the appropriate Maryland circuit court or in this Court within 60 days after arbitration is waived.See Md. Code Ann., Cts. Jud. Proc. § 3-2A-06B(f). The statute further provides that "[a]fter filing, the written election shall be binding upon all parties." See Md. Code Ann., Cts. Jud. Proc. § 3-2A-06B(e). As a result, the Hospital could not subsequently reverse its decision to file the election in order to ask the HCA to rule on its motion to dismiss. Therefore, it seems logical that because the Hospital had filed a binding written election and the plaintiff had not yet filed a complaint in state court, the complaint was not pending in any state forum and could not be removed to federal court.
Second, even if the action were still pending before the HCA, the Hospital could not remove it to federal court. No court previously has decided whether the HCA is a "state court" for removal purposes within the meaning of 28 U.S.C. § 1441 and 1446. In making that determination about a Wisconsin state agency, the Seventh Circuit has stated that "the title given a state tribunal is not determinative; it is necessary to evaluate the functions, powers, and procedures of the state tribunal and consider those factors along with the respective state and federal interests in the subject matter and in the provision of the forum." Floeter v. C.W. Transport, Inc., 597 F.2d 1100 (7th Cir. 1979) (determining that the Wisconsin Employment Relations Commission is a state court for removal purposes).
While many circuits seem to have adopted a similar "functional approach" to this analysis, courts in the Third Circuit have criticized it and suggested that an administrative agency, by definition, could never be a "state court" for removal purposes. See Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir. 1994). Obviously, adopting the Third Circuit approach would not change the result in this case.
Evaluation of those factors, particularly the functions, powers and procedures of the HCA, indicates that it is not analogous to a "state court." First, Maryland law makes arbitration before the HCA a condition precedent to judicial action in state or federal court. See Davison v. Sinai Hosp. of Baltimore, 462 F. Supp. 778, 779-80 (D. Md. 1978). Plaintiff therefore did not simply elect to bring her claims to HCA rather than filing her action in state court, as was the case in Floeter. Second, the HCA procedures are not essentially judicial in character. For example, the arbitrators are not HCA staff, but serve on a purely voluntary basis and are paid by the parties themselves. Each arbitration panel meets to consider a specific claim and then disbands, and the arbitrators therefore are "in no sense a typical organ of government." Attorney General v. Johnson, 385 A.2d 57, 64 (Md. 1978), overruled on other grounds,Newell v. Richards, 594 A.2d 1152, 1161 (Md. 1991). Third, the powers of the arbitrators are not equal to the powers of a state court, because any party may reject the arbitrators' award for any reason within 30 days and may file an action in a court to nullify the award. See Md. Code Ann., Cts. Jud. Proc. § 3-2A-06.
Because removal from HCA was improper, but because the Hospital has waived arbitration, I will deny the Hospital's motion for remand to HCA but I will dismiss the present action. The dismissal will be without prejudice so that the plaintiff can refile her case, in accordance with Md. Code Ann., Cts. Jud. Proc. § 3-2A-06B(f), in this Court or in Maryland circuit court if she so chooses. One potential impediment exists because § 3-2A-06B(f)(3) provides that "[f]ailure to file a complaint within 60 days of filing the election to waive arbitration may constitute grounds for dismissal of the complaint upon (i) A motion by an adverse party; and (ii) A finding of prejudice to the adverse party due to the delay in the filing of the complaint." It would, however, be very difficult for any court to find that the Hospital has been prejudiced by this delay, because the delay resulted from erroneous filings made by the Hospital and because the Hospital has been fully aware of the pendency of the action throughout the delay.
For these reasons, defendant Hospital's motion for remand is denied, but the case is dismissed without prejudice. A separate order to that effect is being entered herewith.