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Neurology and Pain Management Associates, P.C. v. Bunin

United States District Court, S.D. Indiana, Indianapolis Division

January 10, 2017

NEUROLOGY AND PAIN MANAGEMENT ASSOCIATES, P.C., doing business as VANGUARD ELDERCARE, also known as VANGUARD ELDERCARE MEDICAL GROUP, Plaintiff,
v.
ANTHONY BUNIN, and BIO-BEHAVIORAL CARE SOLUTIONS, LLC, Defendants. ANTHONY BUNIN, Counter Claimant,
v.
NEUROLOGY AND PAIN MANAGEMENT ASSOCIATES, P.C., Counter Defendant.

          ORDER ON MOTION TO REMAND AND MOTION TO TRANSFER

          LARRY J. McKINNEY, JUDGE

         This Order addresses two motions pending before the Court. The first motion is Plaintiff's, Neurology and Pain Management Associates, P.C., d/b/a Vanguard Eldercare a/k/a Vanguard Eldercare Medical Group (“Vanguard”), Motion to Remand. In that Motion, Vanguard asserts that Defendant Bio-Behavioral Care Solutions, LLC's (“BCS's”) Notice of Removal (the “Notice”) was defective because BCS failed to promptly file the Notice in the relevant Indiana state court (the “Indiana Court”) through a licensed Indiana attorney, in violation of 28 U.S.C. § 1446(d). See generally, Dkt. No. 21. BCS, however, argues that the Indiana Court received sufficient notice of the removal, therefore rendering its Notice-and its subsequent Amended Notice of Removal (the “Amended Notice”)-effectual. See generally, Dkt. No. 22.

         The second motion is BCS's Motion to Transfer. BCS asserts that this action should be transferred to the Eastern District of Michigan because it is so closely related to another pending action in that district, Cause No. 2:14-cv-14123-AC-RSW (the “Michigan Action”), which involves similar issues and parties. See generally, Dkt. No. 17. In response, Vanguard claims that the Eastern District of Michigan does not have a sufficient connection to this action to justify such a transfer and that, if this action were not remanded to the Indiana Court, the proper venue is the Northern District of Indiana. See generally, Dkt. No. 28.

         I. BACKGROUND

         On September 26, 2016, Vanguard filed its Complaint against Defendants BCS, Anthony Bunin (“Bunin”), and Robert Clemente, [1] asserting breach of contract, breach of fiduciary duty, fraud, tortious interference with business relationships, and unfair competition. Dkt. No. 1-1 (the “Complaint”). Vanguard's claims arise from a Memorandum of Understanding between Vanguard and Bunin, an employee of Vanguard's competitor, BCS, entered into on November 1, 2012. Id. at ¶ 8. Under the Memorandum of Understanding, Bunin agreed to provide marketing, strategic, collaborative, and developmental services for Vanguard's residential senior facilities and hospitals. Complaint, Ex. A (the “Memorandum of Understanding”), ¶ 2E. Although the Memorandum of Understanding indicates that Bunin and Vanguard were to further define the Service Area in which Bunin was to provide these services, it does state that the Service Area would “first include the Indiana market with [Vanguard's] existing facilities for behavioral healthcare services.” Id. at ¶ 2D. The Memorandum of Understanding further indicates that it is governed by Indiana law. Id. at ¶ 12.

         In the Complaint, Vanguard claims that Bunin deceived Vanguard by falsely informing Vanguard that he had terminated his employment with BCS and by falsely reporting his activities on Vanguard's behalf. Complaint, ¶¶ 12, 16-19. Vanguard further asserts that Bunin breached the Memorandum of Understanding by continuing to work and solicit business for BCS, in spite of a non-compete clause in the Memorandum of Understanding intended to prevent Bunin from diverting business away from Vanguard. Id. at ¶¶ 13-15, 19-30. As a result, Vanguard brings claims against Bunin for breach of contract, breach of fiduciary duty, and fraud against Bunin, as well as claims of constructive fraud, tortious interference, and unfair competition against BCS and Bunin. See generally, Complaint.

         On October 20, 2016, BCS filed the Notice with this Court, in which it stated that all of the defendants had received the Complaint on October 3, 2016. Dkt. No. 1, ¶ 2. The attorney for BCS, whose license to practice law in Indiana was administratively suspended, also filed a Notice with the Indiana Court on October 20, 2016. Id. at ¶ 12, 6-7.

         On November 11, 2016, BCS filed the Amended Notice in this Court, further clarifying the citizenship of BCS and its members. Dkt. No. 18. Vanguard filed its Motion to Remand on November 21, 2016, claiming that the Indiana Court had not received proper notice of the removal because the Notice of Removal was filed in the Indiana Court by an attorney who was not licensed to practice law in Indiana. Dkt. No. 21. Indiana attorney Raymond Hafsten re-filed a Notice of Removal with the Indiana Court on November 22, 2016, on BCS's behalf. Dkt. No. 25, Ex. A.

         On November 8, 2016, BCS filed its Motion to Transfer this action to the Eastern District of Michigan. Dkt. No. 16. In its Motion to Transfer, BCS asserts that the Eastern District of Michigan should adjudicate this action because that district has been adjudicating the Michigan Action since 2014 and involves similar parties and claims to those at issue in this action. See generally, Dkt. No. 17.

         In the Michigan Action, BCS brought claims on September 22, 2014, against Doctors Behavioral Hospital, LLC (“Doctors Hospital”), arising from a Marketing Agreement formed between BCS and Doctors Hospital, effective January 24, 2013. In its complaint, BCS alleged that Doctors Hospital failed to pay the amounts owed to BCS for services performed pursuant to the Marketing Agreement. Complaint, Bio-Behavioral Care Solutions, LLC v. Doctors Behavioral Hospital, LLC, No. 2:14-cv-14123-AC-RSW, Dkt. No. 1, Ex. 1.

         BCS claims that the parties involved in this action and in the Michigan Action are similar because Doctors Hospital and Vanguard are both part of the Physicians Hospital System a/k/a the NeuroPsychiatric Hospitals System (the “Physicians Hospital System”) and because Vanguard is specifically identified in the Marketing Agreement as an affiliate of Doctors Hospital. Dkt. No. 17 at 1-2. BCS further indicates that Bunin worked for BCS while the Marketing Agreement was effective and that Bunin entered into both an Independent Contractor Agreement, effective January 7, 2013, and an Employment Agreement, effective September 7, 2013, with the Physicians Hospital System. Id. at 3.

         BCS also states that this action and the Michigan Action involve the same issues because the Memorandum of Understanding between Bunin and Vanguard provides for similar services to those addressed in the Independent Contractor and Employment Agreements between Bunin and Physicians Hospital System. Id. Additionally, BCS indicates that Doctors Hospital asserted that Bunin violated its Employment Agreement with Physicians Hospital System by continuing to work for BCS in response to a Motion for Summary Judgment filed by BCS in the Michigan Action, just as Vanguard has asserted in this action. Id. at 3-5.

         II. MOTION TO REMAND

         In its Motion to Remand, Vanguard primarily argues that because the attorney for BCS was administratively suspended from practicing law in Indiana, the Notice filed in the Indiana Court on October 20, 2016, is void, which would mean that BCS failed to meet all of the requirements of 28 U.S.C. § 1446 to properly affect the removal to this Court within the thirty-day statutory period. Dkt. No. 21, ¶¶ 7-13, 17-20. In response, BCS asserts that the Indiana Court received adequate notice of the removal from the Notice filed in the Indiana Court on October 20, 2016, and that the Notice ...


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