Eufaula Drugs, Inc. v. Tmesys, Inc.

432 F. Supp. 2d 1240, 2006 U.S. Dist. LEXIS 33582, 2006 WL 1379602
CourtDistrict Court, M.D. Alabama
DecidedMay 22, 2006
DocketCivil Action 2:05cv300-MHT
StatusPublished
Cited by5 cases

This text of 432 F. Supp. 2d 1240 (Eufaula Drugs, Inc. v. Tmesys, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eufaula Drugs, Inc. v. Tmesys, Inc., 432 F. Supp. 2d 1240, 2006 U.S. Dist. LEXIS 33582, 2006 WL 1379602 (M.D. Ala. 2006).

Opinion

OPINION

MYRON H. THOMPSON, District Judge.

This lawsuit is before the court on plaintiff Eufaula Drugs, Ine.’s motion to remand to state court for want of subject-matter jurisdiction. The motion will be granted.

I. REMOVAL-AND-REMAND STANDARDS

“While a defendant does have a right, given by statute, to remove in certain situations, plaintiff is still the master of his own claim.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). Put differently, federal courts, as courts of limited jurisdiction, possess jurisdiction to hear a particular case only to the extent authorized by statute or the Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

One statutory right of removal provided to the defendant, based on “complete” diversity-of-citizenship jurisdiction, is when the state citizenship of all plaintiffs is different from that of all defendants, and the amount in controversy exceeds $ 75,000. 28 U.S.C. §§ 1332(a), 1441. Another statutory right of removal exists under the Class Action Fairness Act of 2005 (hereinafter “CAFA”), Pub.L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 *1242 U.S.C.); CAFA authorizes diversity jurisdiction in class actions when the amount in controversy exceeds $ 5,000,000 and “minimal” diversity exists, that is, diversity exists between “any” plaintiff class member and “any” defendant. 28 U.S.C. § 1332(d)(2). For the purposes of CAFA, individual class members’ claims may be aggregated to meet the amount-in-controversy requirement. 28 U.S.C. § 1332(d)(6).

II. FACTUAL BACKGROUND

Plaintiff Eufaula Drugs, Inc., a pharmacy in Alabama, has brought this putative class-action lawsuit, on behalf of all similarly situated persons or entities, against defendant Tmesys, Inc., for whose members and insureds Eufaula Drugs agreed to dispense prescription medication.

According to the complaint, Tmesys agreed to reimburse Eufaula Drugs for filling name-brand prescriptions at a rate based on the average wholesale price. Eu-faula Drugs alleges that Tmesys’s reimbursement policy does not adequately reflect the proper average wholesale price, resulting in under-reimbursements to Eu-faula Drugs. Eufaula Drugs alleges that Tmesys has therefore defrauded numerous pharmacies and breached numerous contracts. 1

On February 14, 2005, Eufaula Drugs filed the complaint, which contained Tme-sys’s address and instructions for the clerk to serve the complaint through certified mail, in the Circuit Court for Barbour County, Alabama. 2 The clerk did not issue the summons until February 28, however, because Eufaula Drugs’s counsel did not file the summons or a completed certified mail card or provide the appropriate postage to the state court clerk’s office until then.

Tmesys removed the case to this court on April 1, 2005, and Eufaula Drugs filed the instant motion to remand on May 2. The court directed Eufaula Drugs to submit evidence as to why it failed to file the summons until two weeks after filing the complaint. The court then held an eviden-tiary hearing on April 26, 2006, to resolve a factual dispute as to the cause of the delay in filing the summons, postage card, and postage.

Debbie Howard, the Deputy Clerk of the Barbour County Circuit Court, stated that she has an “informal practice” regarding service of complaints. When the complaint is to be served by certified mail, plaintiffs counsel is expected to file a completed summons and a completed certified mail form, as well as provide the appropriate postage. 3 If counsel fails to comply with the practice, Howard generally will call the lawyer and ask counsel to complete the forms, but she recalled that she had completed the summons and certified mail card on several occasions. However, she will not serve the complaint by mail (as opposed to arranging for service by the sheriff) unless the plaintiff provides the postage because the clerk’s office budget is tight; in her own words, her practice is “about the money.”

Howard further testified that her practice was not written or published and, to her knowledge, had nothing to do with the Alabama Rules of Civil Procedure, which she has not read. Nonetheless, most lawyers, including those from Birmingham, are aware of her practice. She testified that Richard Harrison, who was retained as counsel by Eufaula Drugs, usually com *1243 pletes the summons, postage card, and pays the postage when he files complaints in the Barbour County Circuit Court. She acknowledged that she was capable of completing the summons and postage card in this case and nothing prevented her from serving this complaint, that is, she had all the necessary service information and could have initiated service immediately after receiving the complaint.

David Nix, the Clerk of the Barbour County Circuit Court, stated that there is no requirement that plaintiffs file a summons along with the complaint or fill out the postage card, although most lawyers do as a courtesy to the clerk’s office. He stated that the clerk’s office generally does not pay for postage and generally will not serve the complaint by certified mail until the plaintiff pays for the postage, primarily because the clerk’s office does not have sufficient money available. Nonetheless, he stated that the clerk’s office had “fronted” the postage fee on five or six occasions during the 35 years he had served as clerk. Finally, Nix acknowledged that the clerk’s office was perfectly capable of completing service of process when Eufaula Drugs’s complaint was filed, even though the office did not do so until Eufaula Drugs provided the summons, certified mail card, and postage.

Richard Harrison, local counsel for Eu-faula Drugs, testified that his secretary usually completes a summons, fills out the postage card, and affixes the correct postage to the envelop before filing the complaint, as a courtesy to the clerk’s office; and that he did not file the summons or postage in this case simply and only because his secretary, whom he had recently hired, was not adept at using computers and took longer than expected to create the complaint, and he was pressed for time to file the complaint before 4:30 p.m., when the clerk’s office closes. He fired his secretary the following day when she was unable to generate the summons properly.

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Cite This Page — Counsel Stack

Bluebook (online)
432 F. Supp. 2d 1240, 2006 U.S. Dist. LEXIS 33582, 2006 WL 1379602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eufaula-drugs-inc-v-tmesys-inc-almd-2006.