UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ANCHOR HEALTH SYSTEMS, INC., 

 PLAINTIFF, 

 VS. 

DENNIS RADOWSKI, CITY OF

HAMMOND, AND PROFESSIONAL

CLAIMS MANAGEMENT, INC., 

 DEFENDANTS. 

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CAUSE NO. 2:16-CV-65-RLM-PRC

OPINION and ORDER 

 Plaintiff Anchor Health Systems filed suit in Lake County Superior Court, 

seeking payment for home health care services it allegedly provided for the wife 

of defendant Dennis Radowski. Mr. Radowski’s contract with Anchor included 

an assignment of benefits, authorizing his insurance providers to pay benefits 

directly to Anchor. Mr. Radowski was an employee of the City of Hammond and 

enrolled in the city’s health insurance plan, and Anchor submitted claims to the 

plan for the cost of the care it provided to Mr. Radowski’s wife. When the claims 

were denied and the bills went unpaid, Anchor sued Mr. Radowski for breach of 

contract and also sued the City of Hammond and its claim’s management service, 

Professional Claims Management Inc., pursuant to the Employee Retirement 

Income Security Act. The defendants timely removed the case to federal court 

under 28 U.S.C. §1446(b), based on the presence of the ERISA claim conferring 

federal subject matter jurisdiction. 
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 Anchor moves to remand, arguing that the ERISA statute explicitly gives 

state and federal courts concurrent jurisdiction over the type of ERISA claim at 

issue here. See 29 U.S.C. § 1132(e)(1). Anchor makes two general arguments: 

that the defendants bear the burden of showing that removal is mandatory and 

haven’t met it, and that Anchor’s federal ERISA claim isn’t separate and 

independent of the state law claims so removal was unjustified. 

Under 28 U.S.C. § 1447, a district court can grant a motion to remand on 

one of two bases: (1) a defect in the removal procedure, or (2) a lack of subject 

matter jurisdiction. See Hernandez v. Brakegate Ltd., 942 F.2d 1223, 1225 (7th 

Cir. 1991). A district court also has the discretion – but not the obligation – to 

remand an action removed from state court when all the federal claims have 

dropped out of the case and only pendent state-law claims remain. See CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 348, 108 S.Ct. 614, 617-618, 98 L.Ed.2d 

720 (1988). Anchor doesn’t allege a defect in the removal procedure and the 

ERISA claims remain in the case; the parties both concede that this court has 

concurrent jurisdiction over the case. 

While Anchor is correct that the defendants haven’t shown removal of 

these claims was “mandatory,” that isn’t the relevant standard. A defendant 

seeking removal bears the burden of showing that subject matter jurisdiction 

exists, Schur v. L.A. Weight Loss Ctrs., 577 F.3d 752, 763 (7th Cir. 2009), but 

that only means that the defendants must show the case is eligible for removal 

– not that state courts had no jurisdiction over the case. Anchor had the right to 
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sue in either a state or federal forum, but the defendants had a right to removal 

because the suit included claims based on ERISA and thus presented a federal 

question. See 28 U.S.C. § 1441(a) (providing that any civil action over which 

federal courts have jurisdiction “may be removed by the defendant or the 

defendants”); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075 (7th Cir. 

1992) (noting that because ERISA is a federal statute, “a suit about pensions is 

federal litigation at the defendant’s option.”) (emphasis added). Once a case is 

eligible for removal, the defendant has a right to removal that trumps the 

plaintiff’s right to choose the initial forum. See Nature and source of right to 

remove action to federal court, 2 CYC. OF FEDERAL PROC. § 3:2 (3d ed.) (collecting 

cases for the proposition that “when the statutory conditions exist, the right of 

removal is absolute.”). 

Anchor suggests that the court has discretion to remand a case presenting 

an issue of federal law simply because state courts also possess concurrent 

jurisdiction. Anchor cites no authority for that proposition, and courts have 

made clear that no such discretionary authority exists. See, e.g., Gaming Corp. 

of America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996) (“A district 

court has no discretion to remand a claim that states a federal question.”); Pettit 

v. Consolidated Rail Corp., 765 F. Supp. 508, 509 (N.D. Ind. 1991) (“That the 

state courts have concurrent jurisdiction over the complaint is no bar to 

removal.”). The “presence of even one claim ‘arising under’ federal law is 

sufficient to satisfy the requirement that the case be within the original 
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jurisdiction of the district court for removal,” and Anchor admits that the ERISA 

claim is within the court’s original jurisdiction. Exxon Mobil Corporation v. 

Allapattah Services, Inc., 545 U.S. 546, 563 (2005), citing Chicago v. 

International College of Surgeons, 522 U.S. 156, 165 (1997). 

In addition to arguing that the court should remand the case because the 

state court shares concurrent jurisdiction over the ERISA claim, Anchor also 

asserts that removal was improper here because the ERISA claim isn’t “separate 

and independent” of the state law breach of contract claim within the meaning 

of 28 U.S.C. § 1441(c). But the words “separate and independent” don’t appear 

in today’s version of the removal statute; Anchor relies on cases interpreting the 

1948 version of § 1441(c), which provided for removal when “a separate and 

independent claim or cause of action within the jurisdiction conferred by section 

1331 of this title is joined with one or more otherwise non-removable claims or 

causes of action.” The statute has since been amended, and the version 

applicable to this action permits allows of the entire action whenever a suit 

includes both a federal law claim and an otherwise non-removable one. Congress 

excised the language requiring that the removable and non-removable claims be 

separate and independent, and under the plain language of the statute as written 

today those attributes are not required. 

For these reasons, Anchor’s motion to remand (Doc. No. 11) is DENIED. 

 SO ORDERED. 
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 ENTERED: April 21, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court