United States District Court, N.D. Indiana, Indianapolis Division
NEUROLOGY AND PAIN MANAGEMENT ASSOCIATES, P.C., doing business as VANGUARD ELDERCARE, also known as VANGUARD ELDERCARE MEDICAL GROUP, Plaintiff,
ANTHONY BUNIN, and BIO-BEHAVIORAL CARE SOLUTIONS, LLC, Defendants. ANTHONY BUNIN, Counter Claimant,
NEUROLOGY AND PAIN MANAGEMENT ASSOCIATES, P.C., Counter Defendant.
ORDER ON MOTION TO REMAND AND MOTION TO
J. McKINNEY, JUDGE.
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.
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.
September 26, 2016, Vanguard filed its Complaint against
Defendants BCS, Anthony Bunin (“Bunin”), and
Robert Clemente,  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.
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.
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,
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.
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.
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.
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.
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.
MOTION TO REMAND
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