Bemis class action removed to federal court

Cincinnati Insurance Company removed a Madison County class action case to U.S. District Court Dec. 29, arguing that the amended complaint adds new claims that do not relate to the original suit.

Chiropractor Frank Bemis sued Cincinnati Insurance on Feb. 15, 2005, claiming the insurer improperly discounted bills for his treatment.

Cincinnati Insurance argues that the case is removable under the Class Action Fairness Act (CAFA) because of its nature and size, and claims that the amended complaint commences a new action because the original complaint was dismissed.

Bemis is represented by Richard Burke, Jeffrey millar and Brad Lakin of the Lakin Law Firm in Wood River.

Todd Lubben of Brown & James in St. Louis, representing Cincinnati, claims that Bemis accepted these payments without objection, complaint or notice that any payment was deficient or that additional monies were due Bemis or his practice.

Lubben writes, "Bemis, individually and on behalf of each member of the proposed class, disclaims any potential award to any class member that is in excess of $75,000. Through this allegation, Bemis apparently seeks to avoid CAFA. However, CAFA provides that the minimum amount in controversy is satisfied if the aggregate stake exceeds $5,000,000, as it does here."

Lubben also states that the 7th Circuit Court of Appeals confirmed that the addition of a new claim to a previously existing matter may "commence" a removable action under CAFA, provided that the new claim does not relate back to the original complaint under state law.

Lubben also writes, "The Third Judicial Circuit Court of Illinois, Madison County, dismissed the original complaint in its entirety on November 2, 2005. By dismissing the original complaint, the court specifically found that the complaint was legally and/or factually insufficient. Bemis now attempts to revive those same claims previously dismissed as well as assert new causes of action.

"Bemis raced to an Illinois state court with his purported class action claims in order to avoid federal jurisdiction over those claims that would shortly be afforded Cincinnati under CAFA. Fair enough. However, the Madison County trial court dismissed each claim Bemis asserted against Cincinnati. In fact, that court adopted all of Cincinnati's arguments and dismissed the entire original complaint.

"Although Bemis attempts to bring the same causes of action as previously asserted in the original complaint, as well as several new causes of action, the problem for him is CAFA now applies. Bemis should not be allowed to circumvent CAFA by attempting to raise new causes of action, with a newly proposed definition of class members, in a state court action that was previously dismissed in its entirety."

Bemis filed six suits in Madison County Circuit Court prior to the enactment of the CAFA on Feb. 18, 2005.